Lord Rooker: My Lords, the noble Baroness has put her finger on some key aspects. The reality is that some 70 per cent of women who enter custody need detoxification. That may not be the reason they are in custody, but it is a key factor. Purely coincidentally, today the prisons Minister, Paul Goggins, is opening the first night centre at Styal prison. That is a key factor.
	The statistics on how long people have been in custody before they self-harm, in the sense of completing the exercise or being saved from it, show that it is quite a short period. More work needs to be done on that aspect. In some ways it would be quite inappropriate in terms of central policy, but I have to say that Sarah was not in prison for a drug-related conviction, although there were drug-related aspects to it and she died of an overdose. As regards drug offences, 35 per cent of women in custody at the moment—some 1,200—are in prison as a result of drug offences.

Lord Rooker: My Lords, work is taking place. The self-inflicted death rate per thousand women is three times the rate of men, for which there has to be reasons. First, the distance that women have to travel to prison is 60 miles which, on average, is about 10 miles further than men. Virtually 70 per cent of women entering prison, as I have said, require detoxification of some kind of opiates, alcohol and other substances, which is a serious issue.
	We need to provide a better process, which is why we are bringing assessment care into the act plan for the care of at-risk prisoners once they are identified. I cannot give a specific reason for why there are only 17—I may not accept that—but work is taking place to create more safe cells and, at Styal, to create a first-night unit so that people are treated differently in the first few hours when they enter prison, particularly women who may have been separated from their families and to whom prison may have come as somewhat of a surprise. On the other hand—I am not negating the fact—one has to consider why women are entering custody. The urban myth that the majority are in prison for shoplifting is simply not true.

Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply. Is he aware that when the Learning and Skills Bill went through this House in 2000 we received extensive assurances from the Minister that adult services would not suffer as a result of any expansion of services for 16 to 19 year-olds? That is precisely what is now happening. The success of getting 16 to 19 year-olds to participate, particularly in further education colleges, is greatly squeezing the adult budget in such colleges.
	Adults can get funding only for courses that lead to an acknowledged qualification. Does the noble Lord accept that the adults who are suffering are those who do not wish necessarily to participate in a full-length qualification—perhaps because they do not have the confidence or do no wish to do so—but who nevertheless need to be able to put their toe in the water of new learning? Is he also aware that by restricting the availability of what is called "leisure learning", such learning is in many senses now available only to the affluent middle classes?

Lord Triesman: My Lords, like everybody else, I hear anecdotes about who feels squeezed. I hope the House will forgive me if I go back to the raw facts. An 80 per cent increase in the number of people taking the kinds of courses which apparently are at risk seems to be a significant change and achievement. I hope that the House will accept that the whole process is a life-long learning process. That means life-long; it is about not just people when they become adults but the whole thrust of policies right the way through from childhood and involves building skills for life.
	As that develops, it is bound to be the case that institutions make changes in the pattern of what they provide—some because priorities change and some because education changes. Educational changes are really the life-blood of this. Were they to stop I would be much more concerned.

Baroness Greengross: My Lords, if life-long learning is to become a reality, will the Minister accept that age should be relevant when you are looking at who is interested in a course?
	Instances of prejudice have been recorded against older people taking part in courses, which has led—I do not know whether it still does, but the noble Lord might do—to courses being made invalid because twice the number of younger people than older people are required to make a course valid.

Lord Graham of Edmonton: My Lords, I declare an interest as the first Member of Parliament to gain a degree from the Open University, which I did in 1976. I am still the only Member of Parliament to do so. I reflect on the local classes I attended. Two ladies in their 80s benefited from the opportunity. So I do not knock the set-up.
	Sitting next to the Minister is his ministerial colleague my noble friend Lady Ashton, who recently played a leading role in assuring that the interests of the Open University and the London School of Economics, as a by-product of changes which were likely to damage them, would be taken into account. The Minister should be aware that the Open University tells me that after recent meetings it still remains dissatisfied about the intentions of the Government in assisting it in this special relationship. Can the Minister give any assurance both to me and the Open University that its interests ultimately will be protected?

Lord Triesman: My Lords, the Open University is dear to the hearts of a high proportion of noble Lords. I have been concerned by reading articles in the press. I have taken the liberty of disbelieving it as a general principle and then going back again to the facts.
	In 2004–05 the general settlement for England had an increase of 2.7 per cent. In the case of the OU it was 3 per cent. Next year the settlement for England is 4.1 per cent and for the OU it is 4.7 per cent. The OU has made the point that there may be difficulties as the fee system changes beyond that. In a nutshell, the Higher Education Funding Council for England is carrying out a significant piece of work on what should be done for part-time students, not just at the OU but right across England. I know that the same issues are being addressed in Scotland and Wales. There are 20 institutions of higher education where more than 50 per cent of the students are part time. So it is very important to get it right for everybody, including the OU but not just the OU.

Lord Triesman: My Lords, no one will expect me to intervene in the bargaining arrangements for further education and the settlements achieved there when compared with the system of pay reviewing which occurs for teachers. I point out that £1 billion of total funding for further education has been set aside as an increase between 2002–03 and 2005–06. That should produce some leeway for all sorts of flexibility, including in salaries—but that is, as I say, a matter for the colleges.
	I think that yesterday's Budget produced among the best news there could possibly be for the FE sector—£75 per week in education maintenance allowances, encouraging people to stay at school; free transport which should help the over 50s get to their further education colleges; and a building programme which will be the envy of western Europe.

Lord Greaves: My Lords, I thank the Minister for that fairly helpful Answer—perhaps a very helpful Answer. In considering advice that might be given to the OSC and any other observers, will the Minister bear in mind the dramatic increases in the number of complaints and allegations about voting fraud, particularly but not only connected with postal voting, which have been made in the past few years?
	Is the noble Baroness aware that only a fortnight ago a former councillor in Blackburn pleaded guilty at Preston Crown Court to such offences in 2002; and that this is only the tip of the iceberg of what is going on? Will she give advice to such observers that they might concentrate their attention on those places and in those areas where such allegations are made?

Baroness Ashton of Upholland: My Lords, I agree with my noble friend that we must take great care in what we say. We must be sure that where allegations are made, they are investigated; where things are discovered that need to be put right, that they are put right; but we should be very cautious of suggesting that things are badly wrong when they are clearly not.

Lord Wallace of Saltaire: My Lords, is the Minister aware that there is a major international dimension to this? The Russian Government are complaining about observers from the West always going to observe elections in eastern Europe and not having proper mutuality. Is it not therefore very much in our interest to ensure that we encourage observers from other countries to come?

Baroness Ashton of Upholland: My Lords, the purpose of this amendment is to clarify that if someone with capacity has written down their wishes and feelings in respect of a matter, including positive preferences, those must be explicitly taken into account in a best-interests determination.
	Patients do not have a right to demand and receive treatment, so advance requests cannot have the same legal effect as advance decisions to refuse treatment. However, the amendment makes clear that preferences about any aspect of a person's life, including treatment, should be respected and taken into account. We believe that that has always been implicit in Clause 4, which says that the decision-maker,
	"must consider, so far as is reasonably ascertainable—
	(a) the person's past and present wishes and feelings".
	I agreed to make that clear, in response to an amendment about advance statements from my noble friend Lord Carter in Committee.
	I want to clarify how that relates to medical decisions because in a medical situation it is already best practice for any doctor who departs from a patient's clearly expressed wish to explain his reasons for doing so, and he would be expected to keep records to enable that. That means that, where someone has sought to make an advance refusal of treatment that does not qualify under Clauses 24 and 25, but there is still a reasonable belief that that is an expression of the person's wishes, it will be taken into account, too, in assessing best interests. The absence of a valid and applicable advance decision does not automatically mean that treatment must be provided. As I have indicated, the decision must be made according to the overall best interests of the person. The more specific and well thought-out the statement, the more likely it will be persuasive in determining best interests.
	The amendment goes further than the stakeholders' requests to us in that it covers all best-interests decisions, not just those involving treatment. For example, it covers financial preferences or where somebody might wish to go on holiday. I hope that that meets the needs that I said I would address in Committee. I beg to move.

Baroness Chapman: My Lords, before I talk about the amendments tabled in my name, I wish to thank the noble Baronesses, Lady Ashton and Lady Andrews, for the government amendments that were put forward and accepted by this House on Tuesday evening and this morning. Those anti-discrimination amendments will help protect those who are most at risk from misrepresentation in this Bill. Those amendments, plus others tabled today, particularly those relating to Clauses 34 to 40, where patients will have an independent advocate to speak for them, are most welcome.
	That brings me to Amendments Nos. 9, 9A and 113, to which the noble Lord, Lord Alton of Liverpool, and the noble Baronesses, Lady Masham of Ilton and Lady Knight of Collingtree, have kindly put their names. Over the many days on which we have discussed and debated the Bill I have watched it change from a document that instilled fear in me to one that, although not perfect, is much safer and much more protective of the most vulnerable in society.
	There is still one area of real concern to me; it is covered by these amendments. I cannot perceive a society that would, or could, accept the withdrawal of nutrition and hydration unless to give it would cause harm. To talk of intention and purpose seems somewhat unreal when we are talking of that which sustains life. For us to spend hours discussing the most appropriate words seems irrelevant when we all know the consequences of withdrawing basic nutrition and hydration.
	I acknowledge and accept that there are situations where treatment is futile. I also accept that as the dying process progresses the body no longer requires sustenance. Those are facts. However, the withdrawal of nutrition and hydration can increase the suffering and distress of the patient until the deprivation of hydration takes effect. We must remember that this Bill does not just cover people who are unconscious and unaware. Clause 3(1)(d) clearly states that,
	"a person is unable to make a decision for himself if he is unable—
	(d) to communicate his decision".
	Lack of capacity can be because of inability to communicate. If these amendments fail, fully conscious, fully aware people are at risk of having sustenance removed.
	From a personal point of view, I cannot think of a worse nightmare than feeling hungry or thirsty, not being able to communicate and having full knowledge that the only respite would be as I approached death. I am certain that that scenario is not the Government's intention. But if Clauses 4 and 60 are not amended it will happen. There have been documented cases where people have had nutrition and hydration removed but continued to show signs of wanting food and water because, for lack of capacity, there was no opportunity to voice new wishes.
	I do not want to challenge the Bland judgment; I have started each amendment "Nothing in this Act" so as to avoid conflict with it. I also appreciate the fact that this will affect only a small number of people. But if you or somebody you love are one of that number, you would not find that any consolation.
	I ask noble Lords to support the amendments because, morally, it is wrong to increase the suffering of people in the latter stages of life, when they are at their most vulnerable and should be offered the highest levels of dignity, respect and care. I beg to move.

Baroness Knight of Collingtree: My Lords, I am very happy to support this amendment put down by the noble Baroness, for whom all of us, already, have a great admiration. I confess that I am feeling a sense of déjà vu as the debates on this Bill continue. Every time we put down an amendment to remedy what we believe is a dangerous implication in the Bill—that it creates a serious risk in some of its aspects—we are told soothingly and convincingly "not to worry—that protection is in the Bill already".
	Whether we are trying to ensure that suicide by advance decision does not happen, or we are trying to help those with conscientious objections by making it certain in law that their rights would be protected, or whatever protective measures we seek to make, the answer is the same. We are told, "There is no need for this amendment. The Bill will not allow any diminution of patients' rights or the rights of those who care for them". Yet we can never be certain that that is correct because it is never on the face of the Bill.
	I have an unhappy feeling that the same anodyne dose will be offered to this amendment. As I have said, I have no wish to endanger the Bill by speaking at length. But if we do not speak now, when can we? Those of us who see and feel the dangers ahead have a clear duty to seek to shield patients from the pain that we have already seen many suffer.
	When I introduced my Patient's Protection Bill, I did so because I had such a wealth of shocking evidence that sick people in NHS hospitals were being deliberately denied food and liquids and were dying because of it. Sometimes the food and liquids were deliberately put out of the patient's reach. I am not making those stories up: there is ample evidence for them.
	The Government blocked the Bill but a Government Minister, the noble Lord, Lord Filkin, who was responsible for the Bill, assured me when I sat on the Select Committee which studied it, that the matter would be addressed in this Bill. Therefore, in earlier debates, I have not unnaturally sought to be sure that it provides the safeguards which really are so desperately needed. But, yet again, the soothing syrup which so effectively clogs the wheels of action is offered in large spoons.
	We are told, "There is no need for this amendment. Such treatments as withholding food and liquids, putting them out of the patient's reach or failing to make the patient comfortable by moistening his dry mouth are already covered by good medical practice. No hospital would act in this way".
	If all that is true, why, under these present rulings, which have been referred to so specifically and so frequently, have we so much evidence from patients, their relatives, MPs and public figures who have seen it for themselves, as well evidence from television programmes, newspaper reports and even doctors and nurses? Why does it go on if it is already illegal? That seems a perfectly fair question. When Nelson said, "I see no ships", his motive was brave and noble. But when the BMA pretends that those things do not happen, I fear that I cannot ascribe to it—although I admire that profession greatly—the same noble intentions.
	I am getting quite used to being told that amendments are unnecessary. The only reason that this one is in that category is either a belief that all evidence is illusory or that we can afford to turn our backs and close our eyes on people who are suffering. Years ago I would have accepted without question that doctors would always do everything possible to help their patients, to keep them alive if possible, and to keep them comfortable. I still admire doctors, but that old belief has gone. I do not believe it any more: how can I, with all the evidence against it?
	I understand that newly-trained doctors do not now affirm the Hippocratic oath, which put the patient's care as a priority. They no longer sign automatically that the duties of a doctor mean also taking on the content of that oath. Whatever unwritten laws there may be in the medical profession's rule book, in the name of patients we must face the facts of evidence and try to get this amendment in the Bill.
	Julia Quenzler, a famous court artist at the BBC, witnessed her mother being sentenced to an agonising death by thirst as a result of doctors depriving her of water. She said that her mother would give a firm nod when asked whether she wanted a drink of water, but the water never came. She states:
	"My mother was not seriously ill when she walked into hospital. In fact she was a relatively healthy woman with a relatively common problem. Six days later she was on her deathbed".
	She went on to state that she did not know what more she could have done, apart from abseiling off the hospital roof, to bring attention to her mother's needs. She said that she,
	"literally begged [the doctors] with my hands pressed in supplication. I don't know why these doctors did what they did. In the absence of any plausible explanation, I can only conclude that they considered my mother an expendable nuisance".
	The examples I give are all cases that have come to my notice since my Patient's Protection Bill failed to become law. A nurse, Pat Tyler, said in respect of her mother:
	"She must have died thirsty . . . she must have been dreaming of cups of tea, of rivers of water. They should not have taken the water away from her".
	But they did.
	Nurses at Kingsway Hospital in Derby have claimed also that their patients were dying of thirst and that they were not given water or drips. I have added all those cases to my large pile on the subject since the last time we debated this issue.
	It is undeniable that whatever rules may govern medical procedure, they are not sufficient to stop the cruel things which are going on. Do we want to stop them? I hope that we do. Do we accept that it is wrong? I hope that we do. If so, the remedy is now in our hands to take action. Agreeing the amendment would make it clearly law that patients must not be treated in the way in which they have been treated in the past, and the amendment in the name of the noble Baroness, Lady Chapman, is the answer.
	Of course, we recognise that in some cases providing food and liquid might harm the patient. Peers will observe that the amendment does not disallow the stopping of nutrition where that danger exists. The noble Baroness has been very careful about that. We cannot fail to agree the amendment if we want patients to receive the very first necessity, which is usually for comfort and well-being, but always for life.
	Finally, I must express the profound hope that the other regular formula against amendments—that is, that they will wreck the Bill—will not be made in this regard. This amendment will not wreck the Bill. It will save the lives of many patients.

Lord Alton of Liverpool: My Lords, I support the amendment standing in the name of my noble friend. I also pay tribute to the noble Baroness, Lady Knight, who has just resumed her seat. She previously put before your Lordships' House her Patient's Protection Bill and has assiduously pursued this issue, believing, as she does, that we need to give every possible protection in the Bill to vulnerable people. I know that all parts of this House are not so far apart in wanting to achieve that objective.
	However, as my noble friend and the noble Baroness, Lady Knight, have said, the issue is how we go about it. In supporting the amendment, I simply return to a subject that I and others raised during the passage of the Bill that the noble Baroness put forward, and an issue that I also raised at Second Reading and in Committee.
	The amendment flows from our discussion last Tuesday. If the loophole that was identified by Professor John Finnis, Professor of Law at Oxford University, and Archbishop Peter Smith of Cardiff had been closed, I doubt that the movers of these amendments would feel the need to pursue the argument further.
	During our earlier debates, considerable doubt arose about whether we should believe lawyers such as Professor Finnis or the noble Lords, Lord Carlile of Berriew and Lord Brennan, also distinguished lawyers. As the noble Baroness has just asked, should we trust the many assurances we have been given or should we look for provisions in the Bill. I have always erred on the side of the latter approach, which is why I welcome Clause 58 as a first step in addressing the issues identified today in these amendments by my noble friend.
	Curiously, during the 36 hours that have elapsed since we last considered the Bill on Report, an issue has arisen that should inform today's debate about the confidence we place in assurances, and on the importance of writing things in the Bill. In 1990 in another place, I challenged a proposal to permit eugenic abortions up to birth on unborn babies with a disability. I said that it was a discriminatory provision, which is the thrust of the argument put forward today by my noble friend Lady Chapman and which lies at the heart of these amendments. I said that it was also a discriminatory provision that would lead to perfection tests governing our right to life.
	In 1990 I circulated a legal opinion drawn up for me by two eminent Oxford lawyers, Professor John Finnis—much cited in our debates two days ago—and Professor John Keown, now professor of law at Cambridge University. Professor Finnis said that if the law was changed in the way proposed in 1990, it would lead to abortions on the grounds of conditions such as cleft palate or hare lip. At the time he was ridiculed and castigated. One Member of Parliament, Mr Frank Doran, accused him of "pure scaremongering", while the present Solicitor-General, Harriet Harman, said that both Professor Keown and Professor Finnis should be reported to the Bar Council and to the Law Society.
	No doubt Ms Harman will have followed carefully yesterday's decision by the Crown Prosecution Service to take no action in a case raised by a brave young Anglican curate from the Chester diocese, Joanna Jepson. She challenged the abortion of a baby, under the terms of the 1990 law, who had a disability. The baby's life was ended at seven months' gestation. The grounds for the abortion, as correctly anticipated by Professor Finnis in 1990, were that the baby had a cleft palate. The Crown Prosecution Service has now upheld the decision to end the life of a baby of seven months' gestation merely because of a very minor disability.
	Was Professor Finnis scaremongering, or did the professor of law at Oxford University have a stronger grasp of the law than the present Solicitor-General, who wanted him brought before the Bar Council and the Law Society for accurately analysing the ramifications of a law that had been laid before Parliament and which was supported by many leading political figures with a great knowledge of the law, even such as the present Prime Minister himself?
	In the context of the amendment before us, this case reveals two things. First, that we now routinely practise eugenics in Britain and that, as my noble friend Lady Chapman has just reminded us, the provisions in this Bill could further put the lives of disabled people at risk. Secondly, it puts into sharp relief the things that have been said by Professor Finnis about the need to close a loophole in Clause 58. One noble Baroness said to me yesterday that she had not appreciated that it was Professor Finnis who worked with the Government in drafting Clause 58, and that if anyone should understand its shortcomings, it would be he.
	For the sake of the record, and in advance of the extensive debates on Lords amendments that may take place in another place, it is important to put on the record the united view of Professor Finnis and the Archbishop of Cardiff, Peter Smith. However, I see that the noble Lord, Lord Carter, wishes to speak. I shall return to that in a moment, after happily giving way to the noble Lord.

Lord Alton of Liverpool: My Lords, I am grateful to the noble Lord, Lord Carter, for reminding us of that. He will also confirm that throughout the consideration period Professor Finnis had extensive discussions with the department and ensured that this provision was placed in the Bill. But it is also important to recognise his view that this provision does not go quite far enough.
	I recognise also that the gap between us is one which still could be closed between now and Third Reading. That is why I am offering these thoughts in a constructive way. I want to see a resolution of this issue and I want the Bill, which contains much that is good, to proceed to the statute book.
	I remind noble Lords of what the Archbishop of Cardiff said in a letter to the Labour Member of Parliament, Mr Jim Dobbin, earlier this month. The Archbishop wrote:
	"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so. I very much hope the government will reconsider its opposition to inserting such an amendment, which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case".
	That point was just made once again by my noble friend Lady Chapman in introducing these amendments.
	It is well known that the main promoter of advance decisions is the Voluntary Euthanasia Society. The society has been ominously and curiously quiet about the Bill, knowing how it can be exploited. I know that the Government might now regret it, but it is a fact that the VES advised the Government on the preparation of an earlier consultation document, Making Decisions, which paved the way for this Bill. Is it any wonder, in the light of that and in the light of previous experience, that we now have our suspicions about where the Bill might lead?
	My noble friend's amendment and her speech remind us that a great many people outside this House who are following our proceedings fear being inappropriately denied nutrition and hydration, the very basics of life itself. And in the light of the eugenic abortion at seven months' gestation of a baby with a cleft palate, please let no one accuse my noble friend, myself, or Professor Finnis of "pure scaremongering", or threaten us with the Bar Council or some other professional body. This House may dismiss their fears as ill-founded, but I should like to stress a point I have made before in your Lordships' House. We are not legislating for some Utopia where decision makers will always have the best interests of incapacitated persons at heart.
	During the 1990 debate, the noble and learned Lord, Lord Brightman, said that, "it would be unthinkable" for a doctor who was carrying out a termination to preserve the mother's life or health to gratuitously terminate the life of the child:
	"A doctor does not need an Act of Parliament to teach him that elementary duty".—[Official Report, 18/10/90; col. 1065.]
	But sadly, as the noble Baroness Lady Knight, has just said, what was once unthinkable can rapidly become normative if we do not put the necessary safeguards in our legislation. What was once a heinous crime can rapidly become standard medical procedure. It is not enough to leave it to good intentions and, yes, it is sometimes the role of Parliament to legislate not just to spell out duties, but also to protect the weak and the vulnerable.
	Some individuals, perhaps not many, will seek to use this piece of legislation to end prematurely the lives of those who lack mental capacity. Denial of nutrition and hydration is one of the ways in which this could be done.
	Many people's fears were compounded when we learnt that the Secretary of State for Health has argued in his submission to the Court of Appeal in the Burke case that resource considerations need to be brought to bear on the decision on whether artificial nutrition and hydration should be provided. My noble friend Lord Maginnis of Drumglass has been pursuing this point in Questions put to the Minister, the noble Baroness, Lady Ashton of Upholland.
	This amendment does not oblige medical professionals to do everything to keep alive patients who are clearly dying and for whom the provision of nutrition and hydration would have no benefit or would be harmful, futile or burdensome. On Tuesday, I listened with great interest to the moving speech of the noble Lord, Lord Carter. He told us that,
	"we are all entitled to follow the dictates of our conscience, but not perhaps by attempting to impose them on others through legislation".—[Official Report, 15/3/05; col. 1289.]
	Neither this amendment nor the amendments debated in your Lordships' House on Tuesday are an attempt to impose anything on anyone. Rather, they represent an attempt to improve the legislation. They do not necessarily represent perfection, and we are all open to further dialogue and discussion with the Government between now and Third Reading to get this right. These amendments represent an attempt to ensure that the Bill cannot be used as a vehicle for intentional killing. I believe that that is an objective shared by everyone in the House who has contributed to the debates held in the course of these proceedings.
	On Tuesday the Minister helpfully answered the seven questions posed by the noble Lord, Lord Carlile. I shall end with just two further questions. First, will the Minister tell us quite explicitly today, in answer to a question raised with her last Tuesday by the right reverend Prelate the Bishop of Oxford and myself, whether Clause 58 covers advance directives? Secondly, do the Government support the legalisation of euthanasia or physician-assisted suicide? They are two, straightforward questions that need to be recorded in our debates. They are different questions from those that have been asked so far. We have received the Government's assurance that the Bill does not legalise euthanasia or physician-assisted suicide, but suspicions will linger for so long as the Government fail to commit themselves to opposing any attempts in Parliament to legalise either euthanasia or assisted suicide.
	Many of us would like to see the Bill enacted, but its fate is now in the hands of the Government. Unless the fears raised by my noble friend Lady Chapman are properly addressed between now and Third Reading, the Government will—I know and they know—be in deep trouble with their own supporters as well as the Opposition Members in another place. I hope that, between now and Third Reading, they will seize the initiative and re-engage with Professor Finnis and others to seek a mature political resolution of these complex issues. I support the amendment.

Baroness Masham of Ilton: My Lords, I have put my name to the amendments. It was mistakenly omitted from Amendment No. 9A. Many people feel that the Bill is still not clear enough in safeguarding at-risk and vulnerable people as regards food and fluid.
	What Ministers and Members of both Houses think should happen may not be what is happening in some busy hospitals and nursing homes. Some disturbing cases have just arisen in a nursing home in Yorkshire. The Minister will no doubt say that the amendments are not necessary, but many people feel that they will help clarify what has become, and what may become, a grey muddle on the ground.
	Doctor Anthony Cole, a consultant paediatrician and magistrate whom I know, has said:
	"We hold most strongly that death by dehydration is unacceptable, inhumane and leads to a slow and painful death".
	I hope that the Minister will accept the amendments, thereby helping many people who are concerned about what is happening and what may happen in the future.

Baroness Murphy: My Lords, I oppose the amendments, but I recognise the cases that the noble Baroness, Lady Knight, has mentioned. Cases of bad care come across my desk every day. Amid the many hundreds of thousands of treatments that are given every year, such cases undoubtedly exist. I would be the first to say that we needed better professional practice than to allow people to remain in that sort of distress.
	I shall address what I believe is a false premise about artificial nutrition and hydration. Before doing so, I turn to the priority that we have all given to the autonomy of the individual in making decisions about their future treatment and care in advance directives.
	We are all strongly supportive of the idea in the Bill that you should be able to make a decision when you have capacity about whether you wish to accept specific treatments when you lack it. Artificial nutrition and hydration are invasive medical treatments that fall clearly into the categories of treatment that would be included if an individual said that they wished to refuse life-saving interventions. They involve the insertion of a nasogastric tube, which is not pleasant at all, or the intravenous infusions of artificial nutriments and chemicals. The paraphernalia restrict movement, and the process requires extensive monitoring. It is uncomfortable and very often distressing.
	Only yesterday, I saw new guidance from the National Patient Safety Agency about the serious problems involved in maintaining nasogastric tubes. It is not like eating and drinking. The person who is fed through a nasogastric tube does not have a sensation that he has had a meal. It is not a good meal where you sit down with your friends and have a glass of wine and what I suppose these days would be ciabatta sandwich, panini or whatever. It is not like that at all. You are receiving artificial nutriments which often give you very unpleasant diarrhoea and so on.
	How often have I witnessed uncomprehending, distressed older people tugging out the tubes and drips in an attempt to be free of the discomfort? On general medical wards, tubes are all too often left in, when someone would really be better not having them.
	The whole procedure is burdensome. While the burdens are generally acceptable to people during a temporary acute illness or during a period after an operation from which one is hoping to recover, they are rarely justified as a long-term form of care when someone is approaching the end of life during a fatal illness. I recognise that the noble Lord, Lord Alton, addressed that issue.
	If the individual is at home, the question never arises. If they are being cared for by family, tubes and drips are not put in. The possibility arises only when somebody goes into hospital and receives unnecessary interventions. Having written a letter to express my wish that, in the event of my becoming incapacitated, I do not wish to have life-saving treatments, I have assumed that my statement includes those burdensome treatments. Supporting the amendments would mean that my wishes and most other advance directives could be disregarded and overturned.

Lord Carter: My Lords, I wish to address myself to the phrase in Amendment No. 9A relating to the withdrawal of life-sustaining treatment. A lot of what I was going to say has just been said by the noble Lord, Lord Walton of Detchant, and I need not say any more about the Bland judgment except to quote from a it a crucial sentence by Lord Keith of Kinkel. He referred to the state of Tony Bland's brain and so on, and went on to say:
	"The undisputed consensus of eminent medical opinion is that there is no prospect whatever that Anthony Bland will ever make any recovery from his present condition, but that there is every likelihood that he will maintain his present state of existence for many years to come, provided that the medical care which he is now receiving is continued".
	If the medical care could keep him alive for many years to come, it clearly was not harmful or burdensome, and this amendment would mean that the Bland judgment would be overturned.

Lord Lester of Herne Hill: My Lords, I promise not to bore the House by repeating the summary that I attempted to make on Tuesday of the legal and ethical principles reflected in the Bland decision, but I would like briefly to deal with one or two matters that have arisen today on the amendments.
	I should say at the outset that I am perfectly sure that it is not the intention of either the noble Lord, Lord Alton of Liverpool, or the noble Baroness, Lady Knight, to wreck this important Bill, but I have no doubt that the effect of these amendments would be to torpedo the Bill, for the following reason. As the noble Lord, Lord Walton of Detchant, emphasised, there are no loopholes in this Bill. These amendments would overturn not only the Bland decision but all the legal and ethical principles contained in it and would in my view breach the human rights in the convention.
	I am perfectly sure, although I am no longer on the Joint Committee on Human Rights, that if these amendments were to be referred to that committee and a legal opinion obtained—which, of course, it is too late now to do—that it too would come to the considered view that these amendments were incompatible with, for example, Article 8 of the convention guaranteeing personal autonomy and Article 3 on dignity, and so on. As I say, however, I will not bore the House with that.
	I should like to do a couple of things that I hope will be useful in this debate. The first is to remind the House of the safeguards that have been built into the Bill by the Government with our consent, which it seems to me are extremely important in giving the context.
	The first point is that the Bill makes it quite clear that decisions to be taken about any treatment for someone who lacks capacity, whether or not it is life sustaining, must be determined by whether it would be in that person's best interests to receive the treatment. That is Clause 4.
	Then, the Bill has been amended to make it clear that when someone is making a determination about whether life-sustaining treatment would be in someone's best interests, they cannot be motivated by a desire to cause the person's death. That is in Clause 4(5). That makes it clear that personal value judgments or a desire that someone should die for whatever reason have no part to play in determining what is in someone's best interests. That amendment ensures that artificial nutrition, for example, is not withheld inappropriately as a result of any value judgments by the decision maker.
	Then, in addition to that, Clause 25(6) provides that, in addition to requiring advance decisions that refuse life-sustaining treatment which must be made in writing and witnessed, it is made clear that an advance decision is not applicable to life-sustaining treatment unless it includes a statement that it is to apply to the treatment even if the person's life is at risk. That is Clause 25(5). That makes it clearer than the previous provisions. It requires anyone making an advance decision to refuse life-sustaining treatment not only to specify that they wish to refuse particular life-sustaining treatment, but also to specify that they wish that refusal to apply even if it risks death.
	Those safeguards, together with the guidance which I understand will be included in a code of practice, will provide a completely balanced and workable framework to protect the sanctity of life and the patient's interests and, if I may say so, the ethical good practices of the medical profession.
	Clause 26(2) provides that where the doctor is in any doubt about the validity and applicability of an advance decision, she or he can provide treatment according to the person's best interests safe from liability.
	I have wearied the House with that because it is important to get the framework right.
	In order that the House understands the clash of principle which underlines these amendments, I want to go back, as the noble Lords, Lord Carter and Lord Walton, have done, very briefly to one passage in Bland. I only wish that it were possible to summarise some of these principles. They deal, I think quite clearly, with a different philosophy—a complete different philosophy—from that of the movers of this amendment. For those who want to look it up, it is the 1993 Appeal Cases. The particular passage I am looking at is in the judgment of Sir Thomas Bingham, as he then was—then the Master of the Rolls; he is now, of course, the senior Law Lord—and it has not been mentioned in the House before. At page 809, he began by saying:
	"if, presciently, Mr. Bland had given instructions that he should not be artificially fed or treated with antibiotics if he should become a P.V.S. patient, his doctors would not act unlawfully in complying with those instructions but would act unlawfully if they did not comply, even though the patient's death would inevitably follow. If Mr. Bland were a child and a ward of the court, it would decide what was in his best interests, having regard to the views of his parents but not treating them as conclusive . . . This case is novel because Mr. Bland is not a child and a ward of court, he is immune to suffering and, as already stated, he gave no instructions concerning his treatment if he were to become a P.V.S. patient".
	I skip the next passage about what is artificial feeding, which the noble Baroness, Lady Murphy, explained very clearly, and why it is part of treatment. But then, Sir Thomas Bingham, as he then was, went on to say:
	"It is relevant to consider the objects of medical care . . . traditionally they have been (1) to prevent the occurrence of illness, injury or deformity . . . (2) to cure illness when it does occur; (3) where illness cannot be cured, to prevent or retard deterioration of the patient's conditions; (4) to relieve pain and suffering in body and mind. I doubt if it has ever been an object of medical care merely to prolong the life of an insensate patient with no hope of recovery where nothing can be done to promote any of these objects. But until relatively recently the question could scarcely have arisen since the medical technology to prolong life in this way did not exist".
	Then, Sir Thomas Bingham, as he then was, quoted case law from around the world—the United States, New Zealand, Canada—all to the same effect, and the Bland principles reflect those. I would ask those who are interested to look particularly at the New Zealand case that he summarises on pages 810 and 811 which, in my view, are wholly in accordance with Bland and wholly in accordance with the dignity of the individual, with the sanctity of life and with patient autonomy.
	The problem about these amendments is that they would take away the Bland principles, even though I understand it to be said that that is not their intention. We know that certainly the noble Baroness, Lady Knight, is no friend of the Bland decision. Previously, I think that she was not very keen on it. But that is not the point. The point is that whether or not one is a friend of the Bland decision, in my view, the Bland decision, which is the law of the land, is entirely correct and should not be overturned.

Lord Lester of Herne Hill: My Lords, in the United States they use a slightly different test from ours; they use a substituted judgment test rather than a best interests test. But it comes to very much the same thing, and the ethical principles set out in Bland repeat what the Supreme Court of the United States and other courts have said in the United States and Canada. There is no real substantive difference between them. They are all to the same effect. They are all contrary to these amendments.

Lord Patten: My Lords, I do not often trouble your Lordships' House with speeches, but I am troubled by a number of the issues that are raised in these amendments. I also think that the noble Lord, Lord Alton of Liverpool, is right in predicting that there may be a bit of trouble—to use "trouble" again—in another place unless we can find some way of perhaps getting some accommodation between all of us who wish to see this Bill on the statute book. But that said, I think that these amendments which we are considering would ensure that basic care, which includes nutrition and hydration, however provided—as the noble Baroness, Lady Knight of Collingtree, has said, it is not just through tubes but through the mouth—is not withdrawn inappropriately.
	I am not a medical man or a lawyer, but I am completely bemused by the classification of "foods and fluids" as medical treatment. I simply do not understand that, despite having read the helpful letters that have been circulated. I have yet to hear a convincing explanation why nutrition and hydration, however so delivered, should be classified as medical treatment and not as basic care—the sort of care that we heard about earlier regarding dealing with bed sores and other issues.
	Exactly what medical ailment is being treated? Since when has hunger or thirst been considered an illness? Those things constitute deprivations, not illnesses. It has even been established in the case of animals that freedom from hunger and freedom from thirst constitute two of the five welfare considerations to which all domestic animals are entitled. Surely it is not unreasonable for the same criteria to be applied to human beings as are applied in law to animals. If starving a sheep to death is worth a six-month prison sentence—as was reported some months back—how can it be logical, ethical or compassionate to justify the starving to death of a human being? I simply do not understand and I would like to be relieved of my burden of misunderstanding or stupidity by the Minister.
	I hasten to add at this point that none of us wants to make unlawful the withdrawal of food and fluids delivered by artificial means from a patient who is in the process of dying, and where the placing of feeding tubes would be regarded as entirely and unduly intrusive and inappropriate—the kind of situation to which the noble Lord, Lord Detchant, to whom I always listen very carefully, has referred in the past—or where, indeed, the risk of placement of feeding tubes would be excessive.
	However, in the Leslie Burke case, the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration (ANH)from a sentient patient—the kind of patient to whom the noble Lord, Lord Walton, referred—whether competent or incompetent, would be compatible with the European Convention on Human Rights.
	The learned judge—I note that a very learned noble Lord, who is much more learned in the law than I—wishes to intervene.

Lord Patten: My Lords, I entirely agree with the noble Lord in every sense that anything which invades the person is a medical treatment, but it may also be the critical way of delivering basic care. On the second point which the noble Lord made, when I was fortunate enough to join your Lordships' House in 1997, I promised myself never to use the words "I remember". However, I am afraid that I am about to break that promise to myself because I do remember in 1981 and 1982, when I was Parliamentary Under-Secretary of State in Northern Ireland—where I had been sent by the noble Baroness, Lady Thatcher, for disobedience for creating too much trouble on the Back Benches—sitting by the bed of the second of the hunger strikers, God rest his soul, when he was two days away from dying of starvation. The hunger strikers drank Highland Spring water. It was a sad and terrible thing to see. Of course, any hunger striker has the right to do exactly what they will with their own bodies in the sense that it was done in the Maze Prison in those dreadful and sad days. I hope that I never have to say "I remember" again in the time I am spared for the service of your Lordships' House.
	However, I return to what deeply troubles me, and that is I do not think that the Bill provides for judicial scrutiny of decisions to withdraw ANH. Therefore, it may be in breach of Article 8 of the European Convention on Human Rights. The Joint Committee on Human Rights appears to be aware of the Bill's deficiency in relation to that. Paragraph 2.51 of the Joint Committee's 23rd report of Session 2003–04 states that,
	"in relation to the withdrawal of ANH, the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill to satisfy the requirements of Articles 2, 3 and 8 as explained by the High Court in Burke".
	In its most recent report—the fourth report of Session 2004–05—which I commend to your Lordships, the Joint Committee urges the Government to amend the Bill to make it clear that if ANH is to be withdrawn or withheld, the document making that refusal or conferring the authority to make that refusal, whether an advance decision or lasting power of attorney, must make it clear that it applies to the refusal of ANH. Otherwise, ANH should continue to be provided, the committee states. The Joint Committee considers that reference to "life-sustaining treatment" is too vague and that people may not appreciate that a decision to refuse life-sustaining treatment would mean that they would be deprived of nutrition and hydration. We are dealing with human beings who may not understand technical terms at the time that they make this commitment. Therefore, I would like to know exactly what action the Government have taken in response to the Joint Committee's report. I am sure that the noble Baroness will tell us that in her response.
	The noble Lord, Lord Alton of Liverpool, said that we live in a eugenic society. We have done so for many decades; it is just that it seems to be bubbling up to the surface now. We used to talk about people being "pro-life" and "the politics of pro-life". I do not mean party politics, but the way in which life issues get brought into the political process.
	It is interesting for those of us who read the newspapers regularly to see how young female correspondents and commentators, often in their twenties and thirties, are now raising those issues, changing their minds, and changing the ground of argument, as they were once so much in favour of keeping the eugenic society under wraps on matters of abortion that the noble Lord, Lord Alton, referred to. The politics of death, which is the term that I prefer to use, will not necessarily roar but will come quite fast up the political agenda. I know that some people do not like to have some of those issues brought into politics. We had a case of that a week or so ago, when the Prime Minister said that he did not wish to have a particular pro-life/anti-life issue raised in the general election campaign.
	None of us who are democrats should ever attempt—as Martin McGuinness has most recently done with the sisters and the fiancée of Mr McCartney who was killed in Northern Ireland—to rule something out of political debate. Anyone who has stood in any election in recent decades will know that those matters of life and death come up from the floor in question and answer sessions, very often promoted by the Church. None of us can rule the key issues out of political debate. The Minister would not seek to prevent that; she is much too sensitive and much too talented, and I better stop there in case I damage her career.
	The issues of life and death and the politics of death will be part and parcel of the next few weeks and the next few years, and we are seeing a major sea change in people's attitudes to those issues. I hope that the Minister can find some way to allow all of us in both Houses who wish to see the Bill on the statute book to vote for it.

Baroness Ashton of Upholland: My Lords, this has been a long and interesting debate. I begin by saying to the noble Baroness, Lady Chapman, who opened the debate, that I was grateful for her words. I want to say something to her at a personal level. When I came into your Lordships' House, I found that I had to get to grips with the fact that the effect of individual words, because we are legislators, is different from that in the world that I came from. I wondered, as the noble Baroness was talking about dealing with words, whether the same thing is happening to her—that sort of journey into understanding that an individual word put in a law can have a huge effect. I shall return to that as I discuss the amendment.
	I say to the noble Baroness, Lady Knight, that I would never want to weary her. I fear that sometimes the noble Baroness feels when I say that something is unnecessary, or use what she described as "anodyne" words, that somehow it is a failure to recognise the underlying interest and cause that she speaks for. I want her to know absolutely—I said it on Tuesday and I will say it again—that I fully understand and respect the issues that the noble Baroness has sought to raise. I say again to those noble Lords who have not been present throughout our debates that because of the work of the noble Baroness, it has become a bigger issue in the Department of Health and in the work that we are doing on this Bill to think carefully about how well basic care is provided for patients. I do not dispute or deny any of the individual, sometimes horrific, stories that she has told us, but that is about people not fulfilling their duties properly, and it is something that we need to address. I simply say that it is not addressed by the amendments.
	I say to the noble Lord, Lord Alton, that I would never seek to bring anything that could be described as a threat to him. I have tried in the course of the passage of the Bill to meet and discuss with anyone who has asked me about any of the issues that have been around. We have tried to provide information, and we have had two sessions with palliative care experts in the House for noble Lords. I am sorry that the noble Lord, Lord Patten, was not there, I plan to send him the little briefing pack about why ANH is a treatment, which I think he would welcome. I have held open sessions every day that the Bill has been in the House. I have visited hospitals and talked to doctors and to as many experts as I possibly could. On Tuesday, I put forward the best case that I could, supported by some in your Lordships' House and opposed by others, about why I felt that it was unnecessary to do some of the things that the noble Lord, Professor Finnis and the Archbishop of Cardiff have sought.
	There was an opportunity at that stage for those who put forward the amendment to seek the opinion of noble Lords. The noble Lord, Lord Walton, has indicated that he withdrew because he was satisfied, and the noble Lord, Lord Carlile, is of the same mind. The noble Lord, Lord Brennan, indicated to me last night that he would not be pursuing the issue. All I can do is try to persuade noble Lords of the issues. I will do no more than that, and I will not do it in any way other than the appropriate manner that noble Lords would expect; that is what debates are for. The noble Lord must consider whether and how he wishes to pursue this. It is no use saying to me, "In another place there will be concerns". Yes, there will be concerns. Noble Lords will be talking, as they do, to their opposite numbers, as am I. We are in your Lordships' House specifically to deal with the issues before us and to make our decisions and our judgments. Yes, I will continue to talk, but I have no intention of reversing my position as I laid it out on Tuesday. I would not want the noble Lord to think that I would do any other.
	I want to make clear the position of the Department of Health on the Burke judgment, because is important. The side issues around the Burke judgment were not around the provision of artificial nutrition and hydration, which we agree when it is in the best interests of a patient should always be provided; there is no issue about that. It was that alongside it came whether a patient could demand any treatment. There are two problems here that the Department of Health is interested in. The first is around clinical judgment. If a patient determines the treatment that they request that is different to a doctor saying, "This is what you need. You can choose to have it or not, but this is what I recommend". Secondly, there is the resource question that we need to get underneath within that. That is why the Department of Health has joined the Burke appeal, not because of the ANH issue, which it is clear about.
	The noble Lord said, "Does the Bill support euthanasia?". It does not. Do the Government in this Bill, or do I, support a position of assisted suicide? No, my Lords, we do not, I do not, and I would not put a Bill before your Lordships' House that did anything to change the law on murder, manslaughter, or assisted suicide. I would resign my position. I would not do it, the Government would not do it, and I would not pretend to your Lordships' House if that were the case. This does not do it. People who have talked and debated with us have come to that conclusion. People of great eminence, not least the noble Lord, Lord Walton, and others who have looked carefully either from, as it has tended to be, a legal perspective or a medical perspective, have increasingly said to me, "I have looked, I have listened, I have looked again, and I agree". The noble Baroness, Lady Finlay, who cannot be with us, sent me a letter—I shall not bore your Lordships' House by reading it out—and she is clear that this Bill does not have the loophole.
	Clause 58 is clear; the law on murder, manslaughter and assisted suicide is unaffected. An advance decision cannot require a doctor to do anything, and certainly does not require a doctor to take any step to aid or abet suicide. An advance decision refuses consent to treatment. We all have a right to refuse consent if we have the capacity to do so. The Bill turns what is already in law—the ability to refuse consent—from common law into statute. We have said that when it is about life-sustaining treatment it must be written; it must be specific, and it must be witnessed.
	For example, the noble Lord, Lord Alton, and I have talked about a young man of 19 with no apparent condition who comes in with an advance decision written and witnessed saying that he does not want anything done. Where the doctor is sure, because it is obvious that this person has tried to commit suicide, they can treat. The difference is that they can treat without any question of their being taken to court or sued under this Bill. That is a huge and important difference.
	The second reason is that even if the decision was not of that type, if the doctor believes that the circumstances have changed in any way—that the treatment has moved on because it was written some time ago or that the individual has done something that suggests that they would not do that or whatever reason—he has only to have any doubt and he can treat, and continue to treat, while seeking advice from the courts if necessary. The Bill makes it much safer and much more protective for people than the current position. That is why it should be on the statute book as soon as possible.
	The noble Baroness, Lady Oppenheim-Barnes, who I am pleased to see has joined our debates, raised a question about relatives. In the Bill there is a new right—which, I confess, I thought existed already—that the next of kin will be consulted. I did not know that there was no right in law for that whatever. In the Bill there is a new right for relatives and loved ones to have their voices heard when the doctor is deciding what is in that individual's best interests. I think that it is really important that if my husband, my son, my daughter or my stepchildren were in that position I would be able to be consulted and so would they—as loved ones. That is a very important safeguard. However, if, in that consultation, the doctor had concerns that a loved one was not acting in the best interests of the patient, he can treat. Again, there is a fundamental difference in the position.
	I could spend a long time explaining to the noble Lord, Lord Patten, why ANH is a treatment, but I am not going to, because I shall send him the presentation by Professor Rob George, the palliative care expert, which is much better. It is not about classification. What matters in the Bill is ensuring that what is offered to the patient is in his best interests. The whole premise within the Bill is that if you are acting on behalf of someone who lacks capacity, you have to act in his best interests. You cannot do anything that is not in the person's best interests.
	For me, the only thing that could override best interests would be if I had written an advance decision that said, in certain circumstances and in a particular way, I would not want this. So, if I am a Jehovah's Witness I may wish to refuse a blood transfusion for religious reasons, which is my right, and decide to write that in an advance decision. Then, if I end up in a road accident and need a blood transfusion, which is clearly in my best interests, my decision on religious grounds can override that. I personally might not like that; the noble Lord might not like that; but that is the right of an individual.
	I also wish to be clear that when it is in the best interests—

Lord Goodhart: My Lords, this amendment is of much less serious importance than the one that we have just been discussing. It raises an issue brought to my attention by the CAB.
	In English law, a contract entered into by a person lacking capacity can be set aside on his or her behalf only if the other party to the contract knew of the incapacity when he or she entered into the contract. In Scotland, I understand that any contract entered into by a person lacking capacity is unenforceable by the other party, even if the other party was not aware of the lack of capacity at the time of making the contract. According to the CAB, that system works satisfactorily in Scotland. Businesses in Scotland do not pursue claims against customers who turn out to have lacked capacity. It seems to me that, in fact, English law does not go far enough, although Scottish law may go a little too far in making all contracts unenforceable in that situation. I moved an amendment in Committee. I withdrew it after debate and have now returned with what I think is a somewhat improved version.
	In its briefing, the CAB refer to two contexts where there is an abuse of people lacking capacity and where remedies in English law are inadequate. The first and obvious one is where someone grossly overcharges a person lacking capacity for supplying goods or services or grossly underpays for property which he acquires from the person lacking capacity. The other context, which is perhaps a little less obvious, is where the person lacking capacity buys at a reasonable price goods or property which are inappropriate or for which the person buying them has no need.
	In Committee, I referred to one particular example from my own experience at the Bar involving a man who owned a small hobby farm and bought gigantic cowsheds to install on the farm, threatening ruin to his family. Steps had to be taken to make that impossible.
	Our amendment starts, with proposed new subsection (3) of Clause 7, by providing that any contract entered into by a person lacking capacity is unenforceable against that person and can be set aside by him or her. Of course, the person lacking capacity, or persons acting on his behalf, would always be free to enforce the contract against the other party if it was favourable to the person lacking capacity.
	Subsections (4) and (5) of the amendment provide for an exception from the rule that a contract is voidable where certain conditions are satisfied. I shall take my cowsheds example and show how those conditions apply.
	The first condition is that the terms of the contract are fair when looked at independently of the surrounding circumstances. As far as I know, the cowshed case involved sheds that were sold at the market price and the terms of the contract were perfectly normal; they were such as would have been insisted on by the supplier with anyone else. So the first condition there is satisfied.
	The second condition is that the other party was not aware of the buyer's lack of capacity and had no reason to suspect it. I cannot say whether that condition was satisfied in the cowshed case. Was the buyer's behaviour so strange as to raise doubts about his capacity? Was enough known by the provider of the cowsheds about the size of the farm or the herd involved to indicate that the sheds were wholly inappropriate? We do not know whether there was anything which required investigation.
	But, even if there is no cause for suspicion and both the first and second conditions are satisfied, the third condition also has to be satisfied. In the cowshed case, the supplier of the sheds must still show that he would be worse off if the contract were set aside than if the contract had never been entered into. This condition would be satisfied, of course, if the supplier had started building the sheds, had paid employees for working on them and had used materials which could not be recovered. The condition would not be satisfied if the contract could be cancelled at an early stage, before work was done on site or other substantial expenses had been incurred in performing the contract.
	I believe the amendment gives protection to people lacking capacity while protecting also the interests of other parties to the contract who have acted properly and would suffer loss through its cancellation. I hope the Government will look on the amendment favourably and accept the principle behind it. I beg to move.

Baroness Ashton of Upholland: My Lords, it was amusing to see the noble Lord, Lord Roper, arrive in the middle of the cowshed explanation.
	I have met with officials from the Department of Trade and Industry and my own officials to talk through these issues. I know that this is something about which the noble Lord, Lord Goodhart, feels strongly. I acknowledge, as does the noble Lord, that there is a tricky balance between empowerment and protection. We have also had discussions with the CAB, which we know is interested in this matter.
	On the one hand, we are trying to protect people who lack capacity from being bound by an inappropriate contract into which they may have entered; on the other hand, we are trying to empower people to take as many decisions as they possibly can. These include, perhaps, people with fluctuating capacity due to mental health problems, or people in the early stages of a degenerative disease who can make some decisions and not others. These matters have to be, in a sense, weighed in the balance.
	I cannot accept the amendment at this stage because, when I spoke to the officials about this matter, we were very uncertain about what would happen; we did not feel that we had the evidence before us of what the consequences might be. We need to consider whether the existing protections are inadequate and what would be the genuine practical benefits of the amendment. We also need to consider what its potential impact would be on business. That is a matter of great concern to the Department of Trade and Industry in particular.
	I am also worried about the risk of disempowering people; that traders might take risk averse action if they are fearful that somehow they will not be able to enforced a contract. We have spoken before about discriminatory issues and how people feel about other people. For example, a person with a learning disability, who is trying to make a contract with someone for the supply of goods, might find himself in a position where the trader is fearful that it will be decided that it is not a real contract and therefore will not do business with that person.
	I am sure the noble Lord, Lord Goodhart, will accept that there is also the possibility that his proposal could be used in fraud; that people could claim that they lacked capacity. We must remember that, under the Bill, lacking capacity could mean that you were blind drunk in an A&E ward. You can lack capacity for all kinds of reasons. Therefore there could be fraud where people claim that at a particular moment they had a mental health problem, lacked capacity, and therefore are not liable for what they have just purchased or what they have just done.
	The impact goes wider than consumer contracts; it could also affect personal relationships between individuals. These issues affect all vulnerable people, not only those who lack capacity, and I am keen to consider also the wider group.
	On a previous occasion I referred to some of the issues we have been addressing, particularly in the Department of Trade and Industry, in regard to doorstep selling—an issue about which I feel very strongly—the unfair commercial practices directive and the Consumer Credit Bill.
	I recognise that this is an important matter. I have committed my department—I wish to put this on the record—to carrying out scoping research work to assess whether there is a problem arising from the current law and, if so, the extent of that problem. This will take into account people who lack capacity and the broader group of vulnerable consumers more generally.
	The DCA will also commit to working with the Department of Trade and Industry as part of the implementation strategy of the Bill to ensure that policy development within the DTI on consumer strategy, credit and indebtedness is sensitive to the needs of consumers who lack capacity.
	I hope that that commitment will satisfy the noble Lord that I accept and recognise the principles he is seeking to develop. However, I cannot accept the amendment because I fear that we might accidentally do something around the empowerment issues, or something which will have a detrimental effect on business, because we have not had time to scope out the problem. On the basis of the commitment I have given, I hope the noble Lord will feel able to withdraw his amendment.

Baroness Ashton of Upholland: moved Amendment No. 26:
	Page 38, line 43, at end insert—
	:TITLE3:"Instrument not made properly or containing ineffective provision
	10A (1) If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so.
	(2) Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which—
	(a) would be ineffective as part of a lasting power of attorney, or
	(b) would prevent the instrument from operating as a valid lasting power of attorney.
	(3) The Public Guardian—
	(a) must apply to the court for it to determine the matter under section 23(1), and
	(b) pending the determination by the court, must not register the instrument.
	(4) Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument contains a provision which—
	(a) would be ineffective as part of a lasting power of attorney, or
	(b) would prevent the instrument from operating as a valid lasting power of attorney.
	(5) The court must—
	(a) notify the Public Guardian that it has severed the provision, or
	(b) direct him not to register the instrument.
	(6) Where the court notifies the Public Guardian that it has severed a provision, he must register the instrument with a note to that effect attached to it."
	On Question, amendment agreed to.
	[Amendments Nos. 27 and 28 not moved.]

Lord Evans of Temple Guiting: My Lords, in laying this order for affirmative resolution, the Government are fulfilling commitments they made to both Houses following the recommendations of the Delegated Powers and Regulatory Reform Committee. The noble Baroness, Lady Buscombe, and the noble Lords, Lord Goodhart and Lord Carlile, proposed amendments to that effect.
	Members of this House might find it useful if I briefly outline the main objectives of the Gender Recognition Act before considering the detail of this order. The Act provides transsexual people with legal recognition of an everyday reality: the gender to which they now belong—their acquired gender. This is no mere legal technicality. It determines who an individual can marry, their pension rights and much else.
	The effect of legal recognition will be that the transsexual person is entitled to be treated for all purposes as a person of the acquired gender, and gains the legal rights and responsibilities appropriate to that gender. The Act sets out clear criteria against which a transsexual person applying for legal recognition will be assessed. Each application will be properly scrutinised by a Gender Recognition Panel, composed of people with legal and medical qualifications. That application process is robust, credible and sustainable, and was recognised as such by Parliament during the passage of the Bill.
	In drawing up that application process we had to be mindful of the fact that many other countries already grant legal recognition to transsexual people in their acquired gender. This is something we cannot ignore when so many UK citizens live and work overseas and just as many overseas citizens live and work in the UK. That is why Parliament agreed to include in the Act a process whereby a person who has gained legal recognition overseas can also gain legal recognition in the UK.
	However, Parliament also agreed that it was only fair to provide such individuals with a simpler process for gaining recognition in the UK. They will have already changed their gender and obtained legal recognition for that change. It would be unfair and unnecessary if, at the end of that long journey, they were required to repeat the full legal process in the UK.
	At the same time, Parliament and the Government were rightly concerned to ensure that the criteria set out in the Act were not compromised. If we were not alive to that danger, a person who did not expect to receive recognition in the UK could potentially go overseas to a country with much softer criteria. If by virtue of that overseas recognition that person also gained recognition in the UK, others would follow and the integrity and credibility of the process in the Gender Recognition Act would be damaged.
	This order protects the integrity of the application process in the Gender Recognition Act. We have undertaken careful research to identify those countries and territories which have a process for legal recognition at least as rigorous as our own, and it is our intention to publish details of that research on the Gender Recognition Panel website.
	The precise criteria for legal recognition of a change of gender are of course not standardised across the world. In drawing up this list we applied two key criteria: first, we allowed only countries or territories that provide legal recognition for gender change—the UK Act is about legal recognition and we felt that we should only approve others which had taken the same decisive step; and, secondly, we allowed only countries or territories where the process of legal recognition is such as to demonstrate the permanence of the decision to change gender.
	Of course that meant that there were countries which did not meet these tests. For example, one country which did not pass muster was Bosnia-Herzegovina. There, while there is a unique citizen's code which refers to "change in gender", the local police station makes the decision on change of name and change of gender. The legal adviser we contacted said that it was probable that such a decision would be based on documentation issued by a competent hospital. This was not good enough.
	The order can be revised as countries or territories establish new schemes for legal recognition. The links we have forged with contacts overseas through the Foreign and Commonwealth Office will enable us to keep the list of countries or territories up to date.
	Once alerted, we will investigate, and if we are satisfied that the criteria for recognition meets with our requirements in terms of legality and permanence, an amending order will be brought before the House.
	Using the same network of contacts, we will also be able to monitor changes in policy which might cause us to withdraw a country or territory from the approved list. However, as countries which appear in this order recognise gender change in law it would be unusual for there to be any resiling from this position.
	The order has been consulted on and has received the support of the transsexual community.
	In summary, the order provides clarity as to those countries or territories with a process for legal recognition which we can trust. A transsexual person who has been recognised in any of the countries or territories on this list will have undergone a process of gender reassignment with the intention of living permanently in their acquired gender. I commend the order to the House.
	Moved, That the draft order laid before the House on 20 January be approved [7th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Lord Henley: My Lords, I thank the noble Lord for that very full and helpful explanation of exactly what is behind the order. By giving that very full explanation most of my questions have been answered. In particular, I wanted to ask about the details of how the Government intend to check on the rigorousness of tests in other countries overseas. For example, in Bosnia-Herzegovina it seems that one just goes along to the local police station to have one's change of gender ratified. I am grateful for the explanation that that is not appropriate. The country cannot be put on the list at the moment, unless it improves its tests in the future.
	The noble Lord went on to say that there would be further orders in due course as evidence appeared from other countries on whether their tests were suitably rigorous, and the Department for Constitutional Affairs would be able to recognise them. How often will it be necessary to come to the House with further orders adding countries? I cannot remember whether under the Act it is only the first such order that needs to have affirmative resolution. Subsequent orders might not be possible with this particular order because of what happened at the time of the passing to the Act, but perhaps subsequent orders might be introduced under the negative procedure. Otherwise, the noble Lord will have to come to the House presumably with some regularity as he adds Bosnia-Herzegovina, then Idaho or India or whatever other country or state of the United States has been left out. I put that forward as an idea. It is certainly something that might be thought of in the future.
	I have one further minor question. In the Explanatory Memorandum we are told that a regulatory impact assessment has been prepared. I am sorry I misread that. I see that one has not been prepared. I failed to notice the "not". I had some doubts as to what on earth any regulatory impact assessment could look at in this order. But I am glad to see that one has not been prepared on this occasion.
	With that perhaps I may say that I welcome this order. I shall be interested to know how many further orders we will have to see in the future and how often.

Lord Goodhart: My Lords, I have not checked through all the changes to see whether they are genuinely consequential, but they certainly appear so and I am happy to accept the Minister's word for it. Although the changes are consequential, the order upholds the principle that any amendment, even consequential, by secondary legislation of primary legislation should use the affirmative procedure. The Select Committee on Delegated Powers and Regulatory Reform has been pressing that for some years. That is plainly right, even if it means that we deal with something that is of no general significance. Therefore, I am glad to welcome the order.

Further consideration of amendments on Report resumed.
	Clause 11 [Lasting powers of attorney: restrictions]:

Lord Patten: My Lords, I entirely support the amendment of my noble friend Lord Howe, particularly after that helpful response to the important question of the right reverend Prelate the Bishop of Worcester.
	I have three points. First, a number of phrases and words that my noble friend used resonated strongly with me. They bear listening to. My noble friend said that his amendment was beneficial to patients and to doctors. I profoundly believe that to be true. Even more importantly, he said that, in the end, no attorney should gainsay any doctor in his decision. If it came to decision-taking, I would accede to a doctor's judgment ahead of the judgment of an attorney. That is why my noble friend's amendment and his gentle request that the Minister reflect on the issue are so important.
	I turn to my second point. The removal of the words,
	"unless the instrument contains express provision to that effect",
	from Clause 11(7)(a) would give the doctor the opportunity to override the attorney. If the words remain, an attorney can override that doctor. That strikes me as being bad in principle and bad in practice and not to be in the best interests of doctors and patients.
	My third point is in response to the advice, related to this issue, that has been issued by Peter Smith, the Archbishop of Cardiff, who, as the House will know, is chairman of the Department for Christian Responsibility and Citizenship of the Catholic Bishops' Conference of England and Wales. I know that no one in this House would therefore dismiss this as being a Roman Catholic issue. It ain't; it is a general issue of humanity in the increasingly eugenic society in which we exist. The Archbishop, in a letter to Jim Dobbin MP on 3 March, wrote:
	"As you know, we have welcomed the Government's amendment to clause 4(5) of the Bill. In our view this provides an important safeguard which, provided the courts interpret it as it is intended, will ensure that doctors, proxies and other third parties are given no authority by the Bill to made decisions with the intention of bringing about a person's death".
	So far so good—His Grace the Archbishop is perfectly satisfied. But he continues:
	"But"—the "but" is very important—
	"this amendment still leaves a major gap. It does not cover advance decisions. The clauses dealing with advance decisions, although tightened up, still leave open the possibility that an expressly suicidal advance decision is binding".
	As we go through the remaining stages of the Bill, it is important to bear it in mind that those in the Roman Catholic Church and other Churches, and doubtlessly individuals, feel that what the Government have done in good faith so far to amend the Bill—I thank them for that—does not rule out the opportunity of an adverse decision. So, I fully support everything that my noble friend Lord Howe has said.

Baroness Greengross: My Lords, in moving Amendment No. 39—which stands in my name and those of my noble friend Lady Howarth and the noble Baroness, Lady Barker, who is not here—I shall speak also to Amendment No. 49. These amendments touch on issues that we debated in Committee in amendments moved by my noble friend Lady Howarth, on 27 January, about putting in place better protection for vulnerable people. I have tabled these amendments having consideration to that debate.
	The amendments would restrict any staff member, manager or owner of a service registered by the Commission for Social Care Inspection from acting as a lasting power of attorney or a court-appointed deputy. I should add that the restriction applies only to paid staff. However, it will apply to all paid staff.
	The amendments have the support of CSCI. I understand that Dame Denise Platt raised the issue with the Minister. She certainly raised it personally with me and my colleagues. It also has the support of other bodies with an interest in these matters, such as Age Concern and Action on Elder Abuse, both of which organisations I am involved with.
	I believe that the amendments are necessary because, as your Lordships know, we have to clamp down on all potential avenues for abuse in care homes, and especially in domiciliary care services. We have heard about people who have been robbed by their care givers and, worse, about those who have perpetrated these crimes but have got away with it because they were registered as holders of enduring power of attorney or as deputies.
	The Registered Homes Act and subsequent legislation has helped to protect people who have had their savings taken by a person with power of attorney. I merely seek reassurance that those safeguards will not be watered down.
	By becoming a donee or a deputy, a registered manager, provider or their staff or relatives would gain wide-ranging powers, under Clause 12 and Schedule 2 to the Bill, over finances and property. However, these are precluded by the national minimum standards, and there are other potential loopholes. For example, though a person will have to declare if he has a criminal record, how will the Public Guardianship Office know if he is on the POVA list? People on that list do not have a criminal record but are deemed unsuitable to work with vulnerable people. I should be grateful to know from the Minister how this loophole can be closed.
	We know that the risk of abuse is particularly great in domiciliary care services where abuse can go undetected for much longer from co-workers, family or friends. That is why the restriction on paid staff being an attorney or a deputy makes good sense. We must remember that while friendships may blossom between care staff and the people they look after, at the end of the day we are talking about the necessity of a professional relationship similar to that between teacher and child.
	I seek the Minister's reassurance that any relevant codes of practice and guidance issued because of the Bill will meet the national minimum standards and regulations. I hope that the Minister will look sympathetically on these amendments. If she cannot accept the wording that I have brought forward, I hope that she will bring forward her own amendments next week at Third Reading. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Goodhart, said that he was acting on behalf of his noble friend Lady Barker. I believe that when we discussed this issue previously, the opposite applied.
	This amendment concerns the Lord Chancellor's function to be exercised by the bishop of the diocese where there is a patron of a benefice and the issue of incapacity arises. The debate that we had in Committee was wide-ranging but the issue before us is quite a narrow one. It is not about the Church's existing patronage system; it is solely about those who can act on behalf of a patron who lacks capacity. Under the present legislation the Lord Chancellor's powers to act on behalf of a patron lacking capacity have a judicial quality. If the Constitutional Reform Bill is enacted, the Lord Chancellor will not be a judge and it would therefore be inadvisable to leave paragraph 10 of Schedule 2 in its current form. Therefore, the Government's amendment transfers the Lord Chancellor's function to a representative appointed by the Court of Protection. The court-appointed representative will have comparable powers to a representative who a registered patron can appoint when he has capacity.
	The representative will have to be an individual who is a communicant member of the Church of England or a church in communion with it or a clerk in holy orders. The representative will fulfil the patron's role not only in presenting a priest to a vacant benefice under the Patronage Benefices Measure 1986 but also in performing the other functions of a patron such as acting as a consultee when there is a proposal to suspend presentation under Section 67 of the Pastoral Measures Act 1983. In discharging his or her functions the representative will be subject to the provisions of the 1986 Measure in the same way that a registered patron would be.
	Government Amendments Nos. 120, 121 and 125 are minor and consequential amendments. Amendments Nos. 120 and 121 ensure that Clause 63 of the Bill can be used to deal with any difficulties which might arise in connection with specialised categories of patron. Amendment No. 125 clarifies the meaning of power of attorney in the Patronage Benefices Measure 1986 and provides for the court appointed representative to send the information required under Section 9 of the 1986 Measure to the designated officer of the diocese instead of the incapacitated patron.
	These are good amendments which have been discussed fully with the Church of England and meet the needs of all those involved. I beg to move.

The Lord Bishop of Oxford: My Lords, from the Bishops' Benches I express gratitude on behalf of the Church of England for the discussions that the Minister has had. This amendment seems to me imminently sensible.

Baroness Ashton of Upholland: My Lords, as the noble Earl has already indicated, in Committee we undertook to bring forward an amendment removing the provision for a deputy to be given powers by the court to refuse consent to life-sustaining treatment in relation to the person lacking capacity.
	People were concerned—I share that concern—that a deputy who is not chosen by the person concerned—that is the critical difference so far as I am concerned—should have so significant a power.
	This amendment Clause 20(6) and amends Clause 20(5) to provide, quite simply, that:
	"A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P".
	I hope that this amendment addresses the concern that noble Lords raised and I commend it to the House. I beg to move.

Baroness Andrews: My Lords, we are bringing the amendments forward in response to considerations that we had in Committee. I am grateful to the noble Earl, Lord Howe, and my noble friend Lord Turnberg, who proposed amendments in Committee intended to clarify one of the key requirements that a research ethics committee must be satisfied with before it approves a research project.
	I remind the House of the purpose of the clause and the effect of the amendments. Clause 31 contains the requirements that the appropriate body, which in most cases will be a research ethics committee, must consider before approving research. The researcher must satisfy the research ethics committee that: the research relates to the condition the person without capacity has; that there are reasonable grounds to believe that there is no alternative research involving only people who can consent; and that the potential benefit is not disproportionate to the risk; or that the research may benefit others and be of negligible risk and not unduly invasive or restrictive.
	Taking the first element, Clause 31(2) is intended to specify that the research must be relevant to the condition the person is in or to the condition—illness, impairment or trauma—that causes that person to lack capacity to consent to the research. We had an interesting debate in Committee, and the amendments brought forward there attempted to clarify how this might be applied to research into matters that were not directly connected to the main cause of the loss of capacity. My noble friend Lord Turnberg sought to address the possibility of research into the failure of bodily systems that might accompany a heart attack, or into the multiple injuries associated with a car accident that had led people to lose consciousness and therefore become incompetent.
	We listened carefully to the views put forward then and also those put forward by research organisations. We have already clarified the intention of this clause by an amendment in another place. To refine the concept in the way that we were invited to do has proved difficult, although we have done it: we have laid it out as best we can, and we have met the considerations. We intended to give effect to the Law Commission's recommendation that the research should be linked to a condition with which the person concerned is, or may be, affected.
	Amendment No. 58 requires that the research be connected with an "impairing condition" affecting the person without capacity, or its treatment. "Impairing condition" is defined as a condition that is or may be connected, or cause or contribute to, the impairment or disturbance in the functioning of the mind or the brain. The amendment does not significantly affect the practical impact of the research clauses, but rather clarifies their scope. The emphasis is now more clearly on the requirement that the research must be connected to an impairing condition that the person has. It concedes that the relationship between the impairing condition and the impairment of, or disturbance in, the functioning of the mind or brain is sometimes not perfectly understood. It makes it clearer that it may be valid to conduct properly designed research to see whether the condition and the impairment or the disturbance are linked.
	The amendment makes it clear that research, for example, to prevent kidney failure in a person in a coma following a car accident or heart attack, as raised by my noble friend, would be permissible if the other safeguards are met. The impairing condition would be the trauma or shock following the sudden crash or heart attack. The research ethics committee would have to be satisfied that there was a good case for believing that the research into kidney failure was connected to the impairing condition, or its treatment. That would be the task of the research group involved. The REC must also take into account all aspects of the requirement for approval in Clauses 31(2) to 31(5).
	Amendment No. 59 is on a different point, which further reflects our decisions on the recommendation made by the Joint Committee on Human Rights in its report of 24 January, which considers in turn the Government's response to the report of 1 November. The Joint Committee paid careful attention to the wording used in Clause 31(3), which requires the research ethics committee to have,
	"reasonable grounds for believing that the research would not be as effective if carried out only on . . . persons who have capacity".
	In January, the second report concluded in paragraph 4.60 that the use of the phrase "reasonable grounds for believing" was a departure from the international standard applied. It commended to us the approach used in Scotland in the Adults with Incapacity (Scotland) Act 2000, that research of a similar nature cannot be carried out on an adult who is capable in relation to the decision. It placed the emphasis on the word "cannot" because it felt that it was closer to the accepted international standard.
	We have taken the Joint Committee's comments to heart, although we do not entirely agree with its conclusions. Nevertheless, we have looked again at the wording of the biomedicine convention. We agree that it is possible to reformulate the requirement in Clause 31(3) in a way that makes that intention clear and comes closer to the view of the Joint Committee. The amendment replaces the former wording to the effect that the research would not be as effective. It now states that there must be reasonable grounds for believing that,
	"research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent".
	Noble Lords will agree that it is clearer and stronger in that respect. It is now very close to the wording of the biomedicine convention, which says in Article 17.1 that research of comparable effectiveness cannot be carried out on individuals capable of giving consent. I am pleased to say that we are following our international obligations there.
	Amendment No. 63 again was discussed in Committee. I am grateful to the noble Earl, Lord Howe, and the noble Lord, Lord Turnberg, for raising their concerns about the intention of the original wording. It affects what happens when people are to be enrolled in an approved research project. Clause 32 details the steps to be taken to inform and consult carers about whether the person without capacity should join a research project. As noble Lords will be aware, the rule is that a carer, or someone who is nominated under guidance to be consulted, be asked whether the person should begin the research. There is a group of cases that make it more difficult, and those are urgent cases in emergency situations such as trauma care, where it is important to give treatment in the first few minutes.
	Noble Lords will know that many research projects are ongoing in the UK, mostly in hospitals, comparing for example better ways of treating heart attacks or head injuries, or finding out what changes the body undergoes after severe infections such as meningitis. We need to find out better ways as research progresses. If the treatments and trials are to take place, we must realise that it is not practicable to undergo the full consultation process required for this type of research.
	We have accepted the recommendation in Committee that we should look again at the wording, and our amendment is along the lines that have been suggested. It widens the range of doctors to be consulted about research in an emergency, so that we do not arbitrarily exclude a doctor who is caring for the person already. We want to provide that the doctor who can be consulted may well be a consultant, surgeon or even a GP whose patient suffers a sudden cardiac arrest or goes into septic shock, for example.
	If the emergency happens in the community—outside the hospital—it is perfectly possible that a person's GP can be involved and give approval for research to be initiated by, for example, a paramedic attending the person at home. It is important to think that research in such a case may simply be the taking of a blood sample. As I hope is clear, those doctors are usually best placed to advise the researcher, as they are familiar with the patient's medical history. It is important to know that, including any complications. In some cases, they will have discussed the prospect of research with the patient themselves, and know their wishes and feelings.
	We have amended the subsection to make it clear that, whatever the doctor's relationship to the person who lacks capacity, the doctor must not be involved in the organisation or conduct of the research project. That was the second element with which noble Lords were concerned. We must avoid potential conflicts of interest where they may be seen as an incentive or other motive to enrol the person in the project, and we have made sure now that that cannot happen. The amendment would rule out a researcher consulting a doctor who might, for example, be organising the research within his or her hospital.
	As set out in Clause 31(6), the researcher, in seeking approval from the REC, would have to specify the arrangements for consulting with another doctor. The three amendments clarify and strengthen the Bill and the research arrangements. We are grateful to noble Lords who have enabled the debate and those changes to take place. On that basis, I hope that they will be able to accept our changes in the spirit in which they were made. I beg to move.

Lord Carter: My Lords, the noble Baroness will remember that she said that we spent a long time on this issue in Committee. She will also remember that the Joint Committee, which I chaired and of which she was a distinguished member, also spent a long time on this subject. Indeed, I am sure that the noble Baroness remembers that she proposed an amendment to the committee's report and she will also remember conversations that we had in which I explained to her exactly how to do so. The amendment was to the effect that people judged to be incapable of making, and unable to make, decisions for themselves should not be used in medical research experimentation. She will also recall that she was not able to convince the committee on that point.
	The conclusion that we reached in the committee was that the amendment as drafted would require the research to be of benefit to the person who was the subject of the research and also of general benefit to people with that condition. We took the view that the treatment being researched should be of benefit, and it was put to us by doctors who gave evidence to the committee that they would not carry out such research unless that was the case. That is the essential point.
	In considering whether the research would be of direct benefit to the person concerned, it is important to remember the conditions that we gave as examples. Research into some of the conditions would be of benefit to the person involved and other research would not. We mentioned investigating why people with Down's Syndrome are at risk of contracting Alzheimer's disease, how best to treat the effects of acute brain injury, how to understand and manage problems such as self-injurious behaviour affecting people with autism, the causes of potentially debilitating mental illnesses, such as schizophrenia, and the best treatments for brain disorders, such as new variant CJD. I list those to show that, in some cases, research might be of benefit to the people involved but, in other cases, it would certainly not be.
	We took the view that when people lack the capacity to give consent, they should be involved in medical research only if it is either in their best interests, which is obviously of benefit, or—not "and", as the amendment states—if it is the only method of conducting research into their particular condition and everyone involved with them is satisfied that it is a non-exploitative proposal which will not harm or distress the individual involved. I believe the Bill reflects that view.
	Our conclusion was that a clause should be included in the Bill to enable strictly controlled medical research to explore the causes and consequences of mental incapacity and to develop effective treatment for such conditions. This clause must include rigorous protocols to protect incapacitated adults from being exploited or harmed. I think the Bill does just that.

Lord Alton of Liverpool: My Lords, I have added my name to Amendment No. 62, to which the noble Baroness, Lady Murphy, has just referred. I agree with her that the Government need to answer the points made by the noble Baroness, Lady Knight, in relation to that amendment.
	I know that the noble friend of the noble Baroness, Lady Andrews—she is just about to resume her place—reminded us at the Committee stage that she has a dislike of lists. However, we have the beginning of a list in Clause 32(3)(a) and (b), and it does not seem unreasonable to me to add a "(c)". The words have no connection of any kind with R and it is the kind of belt and braces provision that should be inserted into the Bill.
	The noble Baroness, Lady Knight, is right to remind the House that we are taking awesome decisions in a whole range of areas. This is the first time that the House—perhaps for commendable, but nevertheless controversial, reasons—has allowed subjects who have some kind of disability to be used for tests and trials that might advance medicine but, nevertheless, may not be with the consent of the person concerned. It is quite an important step change from that which we have allowed previously.
	Every generation has to guard against these matters. I was recently re-reading the debates that occurred in 1913 in regard to a Bill introduced then—the noble Lord, Lord Rix, will be interested in this—which used the words "A Bill dealing with people's mental deficiencies". That Bill sought compulsorily to sterilise disabled people. A conference was called in London of people from all the different political traditions of the day—the noble Lord, Lord Patten, will be interested in this—and that conference was entitled the "Eugenics conference".
	It took the redoubtable Mr G.K. Chesterton and his ally, an independent Member of another place, Josiah Wedgewood, to ensure that that legislation was literally blown out of the water. Perhaps it was one of the few good things that happened in 1914, but the legislation went no further.
	We can see what has happened in the decades that followed. I shall not refer to events in Germany but in social democratic Sweden, between 1920 and 1970, more than 70,000 people were sterilised against their will. As the noble Baroness, Lady Knight, has rightly reminded us, we have to guard against such eventualities here.
	I commended the Government on the previous group of amendments because I believe that they have listened carefully to many of the issues raised by the noble Baroness. Today, and right the way back to the Joint Committee, she has been her usual assiduous self in ensuring that we do not dodge these questions. Ever since we first met in 1979 I have regarded the noble Baroness, Lady Knight, as a person to have on your side, especially if you are in a position where you are at some kind of risk or vulnerable. I say to the noble Lord, Lord Rix, that I know the stand he has taken, both here and in another place, on behalf of disabled people. I congratulate her on doing that. She always shows great tenacity.
	We have made a lot of progress in dealing with these issues during our considerations, but I should particularly like to hear the response of the noble Baroness, Lady Andrews, to Amendment No. 62, to which I have added my name. I believe that it is a reasonable request to add this belt and braces provision that the person who may be researched upon should have no connection at all with R.

Lord Patten: My Lords, I am sure that the Minister has listened very carefully to what my noble friend Lord Renton said and will pay it due and proper attention. I agree, with respect—as I understand one says in legal circles—with what my noble friend has said.
	I want to make three points on the amendments in the name of my noble friend Lady Knight of Collingtree. First, Amendment No. 60 concerns research. I like research. It is good to have research and very often good research is research that fails because it shows that something is not happening. I can see why people wish to have the ability to conduct research and I do not dissent from that at all.
	However, I agree with my noble friend in her first amendment, that replacing the word "or" with "and" in the relevant subsection has a double benefit. It gives a double protection in the interests of patients. In the end, I am much more interested in the human being and the patient than I am in research. That is why I support the amendment. We also have to guard against the unimaginable happening, which is another reason why I support the amendment.
	My noble friend Lord Alton spoke about the Eugenics Society before the First World War. I did not know about that, as he explained it to the House. One never knows how some of these provisions will be used somewhere down the line. I prefer caution where one is dealing with the rights of individuals who suffer from severe personal difficulties, whether mental or physical.
	Secondly, addressing Amendment No. 62, I fully support the insertion of the additional words in the relevant subsection. I would be interested to hear what the Minister has to say about the medico-ethical considerations in relation to the ability of someone to conduct such research to be prepared, as the subsection says, to,
	"nominate a person who—
	(a) is prepared to be consulted by R"—
	I hope my noble friend Lord Renton will forgive me for using that word—
	"but
	(b) has no connection with the project",
	without the additional provision of,
	"(c) has no connection of any kind with R".
	That leads to some difficult issues. I do not want there to be any suggestion that I am criticising the Minister, but this is a very important point and I do not believe that saying this needs to be considered by this or that medical body and that there should be a code of practice that fulfils the need that is met very succinctly and accurately by the amendment tabled by my noble friend Lady Knight of Collingtree.
	Thirdly, the noble Baroness mentioned that many hours had been spent on this kind of issue. I do not believe that my noble friend has any reason to be apologetic to the House. I have to report to the House a disquieting leak from the Whips' Office in another place. How another place conducts its business is not a matter for this place. Indeed, it is a surprise to me to hear through this leak that the other place is allowing only one hour for the final consideration of this Bill in another place.
	Setting aside the fact that leaks like that should not occur from a well conducted Whips' Office—I am sure it would not have happened, under any circumstances, under the benign reign of the noble Lord, Lord Carter—I do not believe that anyone in your Lordships' House should be at all ashamed or apologetic for wishing to look at the issues in full before they return to another place, which will be starved of a second more than 60 minutes when considering the Bill.

The Lord Bishop of Oxford: My Lords, I do not think that the noble Lord, Lord Patten, answered the question posed by the noble Lord, Lord Carter, about Alzheimer's, which is a crucial example. It may be that it is absolutely vital to do conduct research on Alzheimer's disease with a body of Alzheimer's patients, but that there would be no immediate benefit for the Alzheimer's sufferer who is taking part in that research.
	If the amendment is agreed to, it would be difficult to see how one could conduct any research on a disease such as Alzheimer's. As I understand the matter, that was the thrust of the example given by the noble Lord, Lord Carter. The noble Lord, Lord Patten, answered it the other way around, but not the way around that I put it.

Baroness Andrews: My Lords, we have had a wide-ranging debate, as we did in Committee, on the ethics and principles of research and how it fits into the Bill, particularly with the concerns raised by the noble Baroness, Lady Knight.
	As the noble Lord, Lord Alton, said, the noble Baroness has been assiduous. I wish she were on our side. In fact, I am sure that we are both on the same side on the fundamentals.
	I want to start where the noble Baroness started. I think she said, "Never before have we accepted that we can have research on mentally handicapped people". Leaving aside the language, I want to say—and we have said this in some of the correspondence we have had with her—that this is the first time in law that we have attempted to create a clear and proper legal framework around research, as it involves people with mental incapacity. It is a very important and positive step.
	If we look back over the past 15 years, the Joint Scrutiny Committee and the Law Commission years ago noted, complained about and called-for improvements to the lack of clarity around research. Traditionally, research has been done under the Medical Research Council guidelines since 1991. We have moved to change and improve that. We did that first in 2004 with the important clinical trials regulations on drug regimes and so on. Now we have done it in relation to research in general. So I know that the whole House welcomes this proper and legal framework.
	I am sorry that we do not have the provision as right as we should. I am sure we should have consulted the noble Lord, Lord Renton. By using "P" and "R", we have tried to attempt, perhaps in an over simplistic way, to make the Bill easier to read. Clearly, we do not have that quite right.
	The second thing I want to say to the noble Baroness, Lady Knight, is about the Council of Europe. I respect her wide experience on European affairs. The Council of Europe is a very well respected forum to debate consensus of an ethical nature and draft conventions, such as the biomedicine convention. When we sign up, they are binding, inasmuch as any member of state who signs and ratifies a convention must ensure that national laws comply with it. So these are very much in our national interests and in our structures.
	I turn to the amendments. I shall restate the purpose of Clause 31 before I deal with the amendment. The purpose of Clause 31 is to define what kind of research can be approved involving people who lack capacity to consent. Subsection (4) states that the research must meet one of two requirements: it must have the potential to benefit the subject of research without imposing a burden that is disproportionate to the benefit—I am grateful to my noble friend Lord Turnberg for emphasising that point; it is extremely important; or it must intend to provide knowledge relevant to the causes, treatment or care of people affected by the same or similar condition.
	The amendment would tie the two requirements together in a way that research would be allowed only if it was intended to benefit the patient. It would limit the types of research that could be carried out to that which is not only of benefit, but also to that which is easily demonstrable as being of benefit. It would effectively make impossible research that might indirectly benefit that person or that might benefit other people who have the same condition now or in the future.
	So, with respect to the noble Baroness, these are not tiny improvements; they are a significant straitjacket around research in ways that I shall explain in a little more detail.
	In Committee, we had the debate prompted by the noble Baroness, Lady Chapman. What I said then and what is important is that research is surrounded by strict safeguards. First, it must entail negligible risk. Secondly, anything done must not significantly interfere with the person's freedom or privacy. Thirdly, it must not be unduly invasive or restrictive. There is then the requirement to consult with the incapacitated person's carer or a nominated person. Then there is the assessment about whether that research itself may be burdensome. That means assessing the level of discomfort and so on. I shall also return to that.
	I understand the concerns behind the amendment. The Bill strikes the right balance between the concern of the noble Baroness that those involved are properly and fully protected, and yet that vital research can flourish, so that people with those conditions in five or 10 years' time will be better off, with better care and prospects.
	I want to make two points about research. They have been made very well—better than I could—by noble Lords already. Part of the argument revolves around the concept of research designed to generate new knowledge. That is what we call fundamental research. It is the source of research that is furthest away from direct application. The noble Lord, Lord Patten, will know from his experience in the Department of Education how important fundamental research is to all innovation across all sciences. Without it, we make no progress. It is our evidence base for all our science and medicine. The whole point is that we cannot guarantee where and how those benefits occur.
	The amendments effectively make research that may indirectly benefit that person or others impossible. We have heard the example of Alzheimer's disease. The noble Baroness will not be thanked if, for example, as a result of the amendment, in 50 years' time we are using the same treatments and technologies to treat heart disease and any forms of brain injury, trauma or stroke, that we are using now. We fully anticipate that our research organisations will be able to take us forward to things that are presently unimaginable. We have learnt more about the brain in the past five years than we have in the past 500 years. We do not want to stop such beneficial research; I am sure that the noble Baroness does not either. Likewise with genetics. Think of the progress that has been made in genetics in the past few years—our understanding, prediction and treatment of family-based disease. We must be very careful about what we are doing.
	Our second problem about tying the provision to direct benefits concerns the methodology of research. With the best will in the world, research is now governed—for our safety as consumers—in a way that is rarely able directly to benefit those with the particular condition. New knowledge takes time to be evaluated. It must be safely reviewed by peer review systems, replicated by and compared with other findings and validated. It is only when we have gone through that exhaustive and often international process that we can say what treatment is safe. The lead times vary, of course. In health or social care, we may progress from fundamental research into a new treatment or care pathway in a matter of two or three years. In other forms of research, it may take us a great deal longer.
	We have tried not just to surround the process with safeguards as I have described but to reflect that there are rights here to be respected. We, and many others, believe that it is important for people who lack capacity to have the opportunity to contribute, not least as citizens. The Council of Europe Biomedicine Convention states:
	"Were such research to be banned altogether, progress in the battles to maintain and improve health and to combat diseases only afflicting children, mentally disabled persons or persons suffering from dementia would become impossible".
	The group of people concerned may in the end benefit from this kind of research. When we drew up the Bill, we listened to the advice of the Joint Scrutiny Committee and to the Making Decisions Alliance, which also said that such people should have the right to participate.
	I have already referred to the hierarchy of safeguards. There are the safeguards for the people themselves, which mean that they must be listened to and respected if they show any sign of distress, objection or simply not being interested in taking part. The second line of safeguard is the consultative level, both in inviting people to take part and in taking care of them while they are involved in the research project. Thirdly, at organisational level, the whole project, from its inception to conclusion, is validated by a research ethics committee, which keeps the project, its processes and its methodology under constant review, ensuring that that the consultation is constantly valid.
	On a later amendment, when we will talk about the relationship between the individual and science in society, we will have an extra safeguard to offer. Not only would the amendment not help those who have a right to be involved and who will be able to benefit indirectly, if not immediately, but also we do not want to prejudice the future of research and the benefit of people with a disability.
	In Amendment No. 62 the noble Baroness has raised another very important point. We have considered in detail the issue of who is consulted about a person's involvement. Clause 32 deals with the arrangements for seeking agreement for people to take part in a research study once it has been approved. The Bill rightly sets out the importance of consulting those best placed to comment on the likely wishes and views of the person who lacks capacity.
	The first thing that a researcher must do is take steps to identify someone who cares for the person and is willing to be consulted. If that is not possible, the researcher must nominate someone else to act as a consultee. The noble Baroness has tried to ensure that that person is not connected to the research project or the researcher.
	I shall try to reassure the noble Baroness on that point. I hesitate to say that the amendment is not necessary; rather, her concerns are covered by the Bill. Clause 32(3) states that the person consulted must have,
	"no connection with the project".
	We are sure that that could be very widely interpreted. It would certainly include someone involved with, or connected to, either the study itself or a member of the research team. It would also cover wider connections, such as someone with a direct link to funding decisions for the study, for example, or who was involved with the research ethics committee.
	I am adding to the examples that have already been given. But although the wording is already wide enough to capture these cases, we will in any case spell out in the Secretary of State's guidance, which is foreseen in Clause 32(3), the range of connections that we mean. We will make it clear that that includes a connection to the researcher. Of course we will consult on that, as we will on the guidance as a whole. We will also make it clear that we expect researchers, if in doubt, to err on the side of caution in interpreting the clause—that will be clear to the research ethics committee, too. It is not always possible to spell out in advance, or to anticipate, the sort of issues and incidents that might arise. That is why we must leave ourselves some room to be able to respond and to make judgments based on individual decisions.
	For people who have no immediate or obvious person to help them—we have used the term "unbefriended"—we intend to ensure that healthcare providers that host clinical research make arrangements, through the chief executive, to identify a panel of people who could be available to act as a nominated legal representative as relevant to the trials being undertaken in the organisation.
	That will obviously be of huge benefit. Only a very small number of people would have neither someone whom they knew nor someone who could come from another source to help and advise them through the process. Where there is nobody, and we have to set up such a panel, we will certainly look at the training for the requirements of the role. We will also monitor the performance of that body to ensure that it operates to the highest standards. It is possible that the clinical ethics committee could take on that role.
	A range of individuals employed by an NHS trust or another healthcare organisation could potentially fulfil the role of a legal representative, such as other clinical staff not connected with a trial, social workers or non-executive members of the trust board. That is probably as much detail as I can provide at the moment about the ways in which we are approaching that problem.
	In conclusion, Amendment No. 62 proposed by the noble Baroness would cause major problems. Her suggested wording would be practically impossible to interpret. Would working in the same hospital or living in the same street, for example, count as a connection of any kind? It would take us into realms of association that are very difficult to cover and to anticipate. I think that the noble Baroness would accept that point. But I hope—

Baroness Andrews: These government amendments have once again been tabled in response to arguments put to us in this House. Amendments Nos. 64, 65 and 66 further strengthen the protections around Clause 33 and make it crystal clear that it is the person without capacity who comes first.
	Amendment No. 64 is needed to make sure that in respecting any signs of resistance from the person, it is clear that the person's greater health needs must come first. I will come later to Amendment No. 65, which is based on principles that stem from the World Medical Association's Declaration of Helsinki on medical research. It adds a new requirement that the interests of the person must be assumed to outweigh those of science and society. Amendment No. 66 makes it clear that any withdrawal from research does not require beneficial treatment to be halted.
	All these amendments are further backed up by government Amendments Nos. 97 and 99 which specifically name researchers as having a duty to have regard to the code of practice. This brings them into line with others named in the Bill. In all, this is a comprehensive package of amendments that reiterates the importance we attach to protecting people who lack capacity.
	Turning to the individual amendments, Amendment No. 64 highlights the important issue of how to balance respecting a person's wishes against protecting them from harm. Let me just remind noble Lords that Clause 33 includes the safeguard that if a person objects to something, their objection must be respected. It is very important to make it clear that this amendment is absolutely not intended to and will not weaken that safeguard.
	However, in our debate in Committee led by the noble Baroness, Lady Barker, speaking on behalf of the noble Baroness, Lady Finlay, attention was drawn to the issue of preventing harm to patients in very specific circumstances. For example, a patient might make an action, even a reflex movement, as natural as flinching or pulling away before a needle is put in his arm. The way the clause is currently drafted could be interpreted as meaning simply that a researcher could not even act to steady the person's arm. That could lead to a much more harmful effect on the patient, or it could even be interpreted more extensively as meaning that research could not be continued at all in such a situation. That, too, is something we cannot contemplate.
	Our concern here is that the clause could be interpreted as encouraging researchers to discard standard safety measures simply because a person without capacity objects to them. That is not our intention.
	For the first time, therefore, the clause puts a positive duty on researchers to respect signs of resistance while recognising the fact that a person's greater health needs must come first, and therefore a researcher's duty to protect the patient must come first. That will mean taking an action intended to minimise pain or discomfort.
	The amendment highlights a researcher's duty of care and fits well with the broader requirement in Amendment No. 65, that the interests of the person must be assumed to outweigh those of science and society. I am sorry that the noble Lord, Lord Alton, is not in his place because he has championed this issue at each stage of the Bill. In introducing these amendments we are putting beyond doubt the fact that the interests of the person come first.
	The noble Lord has repeatedly stressed the importance of adopting language from widely respected international declarations such as the World Medical Association's Declaration of Helsinki. Not only have we put this in the Bill, we also intend to use the code of practice to explain it in more detail. Although it was not possible to accept the noble Lord's precise amendment because it would have introduced an impossibly broad duty of care that would have been unworkable, we are happy to adopt its spirit.
	Amendment No. 65 therefore adds the important principle of ethical research to the Bill. It adds to the safeguards already provided in Clause 33 a new requirement that the interests of the person must be assumed to outweigh those of science and society. I am confident that the general duty set out in Section 5 of the 2002 edition of the Declaration of Helsinki will be supported by researchers as the pre-existing principle of ethical research, and which is now enshrined in the Bill. So that is a very positive response, not only to the noble Lord, but also to the Joint Scrutiny Committee, which also recommended that we use the declaration as the framework for the Bill.
	Amendment No. 66 would extend the safeguards in Clause 32(6) so that a researcher would not have to stop any treatment if he felt that doing so would create a significant risk to a person's health in cases where the person asked or indicated that he or she no longer wanted to be a part of research. I am grateful to the noble Earl, Lord Howe, and the noble Lord, Lord Kingsland, for proposing the amendment in Committee. We were sympathetic to what they were trying to achieve.
	The Bill already contains such a safeguard for cases where a carer objects to a person's involvement. Clause 32(6), for example, allows a researcher to continue treatment in such cases if withdrawal would be detrimental to the person's health. However, as I said in Committee, it makes no sense to have that safeguard for situations where a carer objects to the research, but not the person. Government Amendment No. 66 rectifies the imbalance. In all such situations, the needs of the person come first, and the person can of course be withdrawn from the research project—and not have data recorded about him, for example—but he can continue to receive the treatment.
	I turn finally to Amendments Nos. 97 and 99. Again, I am grateful to the noble Earl, Lord Howe, for proposing an amendment that would add research to the list of subjects to be covered by the code of practice. The draft code contains a chapter on research, and the final version will undoubtedly do so. It is an extremely important chapter. It will set out more fully than the Bill can do the detail of when research should or should not be undertaken, and all of the safeguards that will be in place to protect the person lacking capacity.
	We have gone a little further than the noble Earl, Lord Howe, suggested in his amendments. We have also placed a duty on researchers to have regard to the code. It is only right that researchers should be in the same position as the independent mental capacity advocates, attorneys, deputies and others in a position of trust.
	People acting in a professional capacity or for remuneration are already caught by Clause 40(4). That will usually apply also to researchers, but it is safest to spell it out, as it might not always be clear.
	I hope that noble Lords will feel that we have responded as well as we might to the points that were raised in Committee. The amendments strengthen the Bill and extend the protections offered to patients involved. It is to the credit of noble Lords that we have responded to their suggestions in the way that we have. I beg to move.

Baroness Barker: My Lords, I want to take the opportunity to ask the noble Baroness something about this amendment to Clause 39. In her introduction to it, she said that it would extend the scope for local authorities and primary care trusts to go beyond what is now the minimum. Am I right to assume from her comments that that is the power that will enable local authorities to extend the independent mental capacity advocacy services to people who are not, in the words of the Bill, "the unbefriended", but who may find themselves caught in an extremely difficult situation—perhaps as a result of their relationships with their families or with organisations such as those that are involved in their care?
	Am I right in assuming that she is enabling local authorities to use some judgment if it appears that that may be the right course of action in the best interests of that person? I agree with the noble Lord, Lord Pearson of Rannoch, that, in the majority of cases, family carers will work in the best interests of the person—I have no doubt about that. But even in families where people do not lack capacity, there are tensions and so on and it is always important to have the advocacy service there as a safeguard which, I hope, will not be needed. If my understanding of the noble Baroness' words is right, I very much welcome them.

Baroness Ashton of Upholland: My Lords, the noble Baroness, Lady Barker, is absolutely right. It is about extending the services to which we are already committed. The phraseology was perhaps less elegant than it might have been. It is right to look at that and do that in consultation, because, as the noble Baroness knows, within the 37 organisations referred to by the noble Lord, Lord Rix, there are slightly differing views. We must ensure that we use the service and the £6.5 million that we have available in the best way we possibly can.
	Regarding the point raised by the noble Earl, Lord Howe, it is important that we consult properly and understand all the sensitivities, particularly where local authorities might be seen to be "autocratic", as he suggested. We also recognise that it is important that the appropriate complaints procedures are also used. The noble Earl knows better than I that nowadays, in healthcare that means people can approach the Commission for Health Care, Audit and Inspection and, finally, the health service ombudsman, with complaints of this nature; and, through social care, ultimately up to the Court of Protection.
	So, we are clear that we should use the proper dispute mechanisms that already exist. However, in the consultation, we shall be mindful to ensure that we get this right to capture the people whom we need to support while not getting in the way either of family relationships or, in a sense, supporting authorities to do things that would be unsatisfactory at best. I hope that, on that basis, noble Lords will feel comfortable.

Lord Pearson of Rannoch: My Lords, with reference to the comments of the noble Baroness, Lady Barker, might it be worth thinking of a mechanism whereby, if an authority or PCT wished to impose an IMCA on a good family with obvious good family care and there was a dispute about that, could that go to the Court of Protection for adjudication? I think that the noble Baroness said that this would happen, anyway.

Baroness Ashton of Upholland: moved Amendment Nos. 97 to 100:
	Page 23, line 32, at end insert—
	"(da) for the guidance of persons carrying out research as part of a research project approved for the purposes of this Act (and otherwise with respect to the provisions of sections 30 to 33),"
	Page 23, line 33, leave out "consultees" and insert "mental capacity advocates"
	Page 24, line 5, at end insert—
	"(ba) as a person carrying out research as part of a research project approved for the purposes of this Act (see sections 30 to 33),"
	Page 24, line 6, leave out "consultee" and insert "mental capacity advocate"
	On Question, amendments agreed to.
	Clause 41 [Codes of practice: procedure]:

Baroness Ashton of Upholland: My Lords, my speaking note states that we do not disagree with the Delegated Powers and Regulatory Reform Committee. We are going to come to a much bigger issue on which we have been discussing matters with that committee. The Government's usual modus operandi is to state that we will do what the committee did or did not recommend, and I do not quite accept that the Delegated Powers and Regulatory Reform Committee might not have had the right people on it at a particular point in a particular Bill. Where could we go with that thought except to say that we will just ignore it? I do not think we should do that.
	My main argument with the noble Lord—apart, perhaps, from the desire not to spend even longer debating the issues around the Bill than Parliament already has done—is twofold. First, the code of practice is an important document for the professionals, organisations and families for whom the code of practice and its interpretation is everything but who will not be reading this legislation on a wet Friday afternoon. I am very keen to have the kind of debate and consultation that will ensure that the code of practice is absolutely right.
	There is no big surprise in that. In producing the draft code we have made sure that people have received copies and we have been open, honest and straightforward about what it will be. But the amendments seek to provide that the code has validity only if there is discussion in your Lordships' House and another place; that we will have to wait for parliamentary time to do that; and that that is paramount. That is not how I see the issue.
	The other argument, as the noble Lord, Lord Goodhart, quite rightly said, is the fact that there will be codes. One of the issues we have discussed throughout the course of the Bill is the specific parts of codes which are relevant to particular people. Whether they be researchers, doctors or family members, the voluntary sector has a huge interest in this.
	We could reach a position where we have six or seven codes—I am not suggesting that this will happen, but let us assume for a moment that it does—waiting for parliamentary time, which, as the noble Lord knows, is incredibly difficult to find in your Lordships' House, to debate each code separately. This could take place in a dinner hour when there may be no more—I will be frank about it—than three or four noble Lords in the Chamber to debate it.
	So my issue with the amendment is not that I object to coming to your Lordships' House and debating the matter. The negative procedure enables the House to debate the matter if someone feels very strongly that we have got it wrong. But I do not accept the idea that the code will have validity only when it goes through the affirmative process.
	I also do not accept that there is a bigger consultation to be had out there. Once we have done that, once we have got a good code and put it through the negative procedure, we can get on with it. That is what I would prefer to do, notwithstanding what the Delegated Powers and Regulatory Reform Committee has said.
	In the best possible spirit, I shall resist the amendment. It is not strictly necessary because we have been very open about this matter. Nothing will be introduced that will be a big surprise. As I have already indicated, every single Member of your Lordships' House or another place who has participate or been interested in the Bill will, as is right and proper, receive a copy of the code and be invited to comment on it.

Baroness Ashton of Upholland: My Lords, I am moving Amendment No. 107 in slightly odd circumstances. This was the amendment that I tabled to introduce a new Bournewood regulation-making power. As noble Lords will know, a number of noble Lords spoke in Committee, and indeed on Second Reading, about the issue of the Bournewood judgment and the need for us to move at some speed to try to resolve it. As noble Lords will also know, I made it clear in your Lordships' House that it was very important that the process was done properly. That meant a serious consultation to ensure that we dealt with the issue appropriately.
	The Select Committee on Delegated Powers and Regulatory Reform has been extremely helpful. I am extremely grateful to the noble Lord, Lord Dahrendorf, for his formal advice as well as for the formal work that the committee has done on this. We produced a very wide regulation-making power, but the committee, in its wisdom, has said that it is not an appropriate delegation. I completely understand why it reached that view. Since the regulations need to await the outcome of the full consultation, they are unusually wide powers.
	The Delegated Powers and Regulatory Reform Committee is concerned that the powers have little in the way of limitations; that it is inappropriate to use secondary legislation in relation to powers to deprive someone of his liberty, especially when equivalent powers under the Mental Health Act are in primary legislation; and that there are likely to be a significant number of policy issues that warrant full scrutiny and amendment via primary legislation.
	However, I wanted to move the amendment to enable us to have a short debate about what will now happen and to try to assure noble Lords of the Government's good intentions in this area. We wish to resolve the matter. I am very keen to hear how noble Lords feel about this measure. However, as I have already indicated, I respect the comments of the Delegated Powers and Regulatory Reform Committee and I shall withdraw the amendment. I beg to move.

Earl Howe: My Lords, there is no doubt that the amendments place the House in considerable difficulty. The Government are to be warmly commended for having responded to the concerns raised by many noble Lords on Second Reading and in Committee about the absence in the Bill of any provisions designed to address the issues raised in the Bournewood judgment. As the Minister explained, the amendments before us represent the Government's response to those concerns. Nothing would give me more pleasure at this stage in our proceedings than to give the amendments the green light, but I respectfully agree with the Minister that it would be wrong for us to do that.
	The Delegated Powers and Regulatory Reform Committee has reported on the amendments in categorically negative terms. It pointed out that the proposed clause contains little by way of limitation in the Bill. It describes it as little more than a skeleton power. The seriousness of the matter at issue makes that an observation to which we should pay particular heed.
	The report goes on to say:
	"Detention of someone who has committed no offence is a difficult and serious issue requiring the closest scrutiny . . . we do not consider it appropriate for subordinate legislation alone to determine the whole range of issues covered by the proposed clause . . . It is our view that as far as the appropriateness of the delegation of power is concerned, the new clause 'Protective care for certain persons lacking mental capacity' is not an appropriate delegation".
	I do not see how the House can reasonably disregard such an unequivocal opinion from your Lordships' committee, so I have come to the conclusion—albeit most reluctantly—that we should ask the Minister to withdraw the amendments, while at the same time urging her to use her best endeavours to make sure that appropriate primary legislation addressing the issues in Bournewood is brought before Parliament at the earliest possible opportunity.
	I congratulate the noble Lord, Lord Carter, on his brave attempt to address the issues in Amendment No. 107A. Impressive as it looks, I am not sufficiently expert to assess its merits in the round, so we should defer to the Minister in that regard and await the observations that she is about to make on it.

Baroness Barker: My Lords, I do not wish to prolong the debate at this hour. I agree strongly with the noble Lord, Lord Carter, that the issue is desperate for a solution within a short space of time. Much in the Government's amendment is to be commended. I found myself reading it again the other night and thinking back to an argument that has raged ever since I have been in this House about "may". I wondered whether the Government might not have done themselves a favour to have used "must", particularly in relation to proposed new subsection (3).
	That subsection sets out a list of issues—many of which are mirrored in the amendment tabled by the noble Lord, Lord Carter—which will have to be addressed to meet Bournewood. The Government do not have an option on that. Whether or not the Government miraculously manage to address the issue in this Bill or not, it is clear from the mental health committee's work that it will have to be addressed. The noble Lord will not be surprised if I say that I would be fairly astonished if mental health legislation came in even within the dates that he mentioned. To be fair, I think that he would be astonished as well, as both he and I have had the privilege of seeing the report of the committee because we are both members of it.
	I agree with the noble Earl that the comments of the Delegated Powers Committee cannot be ignored. Nevertheless, there is an urgency to the matter. The report of the Joint Committee on mental health will be available very shortly. As soon as it is, perhaps the Government ought to seize the opportunity to follow the advice of the noble Lord, Lord Carter, and to undertake to bring in a piece of standalone primary legislation that will address what is an undeniably serious problem. We are talking about the deprivation of liberty of incapacitated people with no means or ineffective means of redress.
	Although there is much to commend the noble Baroness's amendment—it is more of a kite than an amendment—I agree with comments made around the House.

Baroness Ashton of Upholland: moved Amendment No. 125:
	Page 77, line 37, at end insert—
	:TITLE3:"Patronage (Benefices) Measure 1986 (No. 1)
	(1) The Patronage (Benefices) Measure 1986 (No. 3) is amended as follows.
	(2) In section 5 (rights of patronage exercisable otherwise than by registered patron), after subsection (3) insert—
	"(3A) The reference in subsection (3) to a power of attorney does not include an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005)."
	(3) In section 9 (information to be sent to designated officer when benefice becomes vacant), after subsection (5) insert—
	"(5A) Subsections (5B) and (5C) apply where the functions of a registered patron are, as a result of paragraph 10 of Schedule 2 to the Mental Capacity Act 2005 (patron's loss of capacity to discharge functions), to be discharged by an individual appointed by the Court of Protection.
	(5B) If the individual is a clerk in Holy Orders, subsection (5) applies to him as it applies to the registered patron.
	(5C) If the individual is not a clerk in Holy Orders, subsection (1) (other than paragraph (b)) applies to him as it applies to the registered patron.""
	On Question, amendment agreed to.
	Clause 64 [Commencement and extent]:
	[Amendment No. 126 not moved.]

Bill returned from the Commons with the Lords disagreement to certain Common amendments not insisted on but with amendments proposed in lieu thereof and with consequential amendments; it was ordered that the Commons amendments be printed.
	House adjourned at twenty-three minutes past six o'clock.
	Correction
	In col. GC200 on Monday 7 March, the contribution of the Lord Berkeley was misattributed to the Lord Bradshaw.